Understanding Cross-Border Employment Issues: Key Legal Considerations (Full Transcript)

Speaker 1: In this video, I'm going to take a look at something that affects probably only a small number of employees, but for those who it does affect, it can be quite important and quite significant. That is the whole question of cross-border employment issues. So you may be somebody who's working in Spain or in France or in Germany, and you may have a very significant connection with an Irish employer. In fact, you may be directly employed by an Irish employer, or you may spend some time abroad each year, perhaps six months in one country and six months in another. Or you may be from outside of Ireland and now working in Ireland. So you could be American or non-EU or whatever, and you may be concerned about employment disputes, employment issues, and what is the applicable law, what's the jurisdiction, what's the statutory regime that applies to your particular employment that's assuming that there is a problem or a dispute. So the three most important issues to look at in relation to cross-border employment issues would be, one, what is the applicable law of the contract of employment? Two, what statutory regime will apply to your particular employment? And three, what courts have jurisdiction to hear disputes in the event of a dispute about breach of contract, or indeed other issues. But generally, there's going to be a statutory regime, which will be your first port of call. However, if it's a breach of contract case, then you may well want to go to court, and you may well be looking for an injunction or bringing a claim for breach of contract. So what courts have jurisdiction? If you're working in Ireland, for example, and you're American, or vice versa, or if you're working in France, or working in Spain, or Germany, or what is the appropriate jurisdiction to hear your dispute. So in relation to the statutory regime, the employee can rely on the statute law in force in the country where he or she works. This is so, this is the situation regardless of whether the contract says otherwise or not. So if you're a French person, or a German person, or a Spanish person, and you're working in Ireland, well then the statutory regime applicable to your job will be the statute law in Ireland. Likewise, if you're a U.S. employee, it's the same story. If you're an Irish worker in France or Germany, French or German statute law, the appropriate one, will apply to you. If you move between jurisdictions, then you can actually choose the most favorable one to you. The second big issue to look at would be contractual disputes. The employment relationship between you as an employee and the employer is governed by a contract of employment. So what jurisdiction will apply, what country's jurisdiction will apply to the contract? The Rome 1 regulation allows parties to choose which country's jurisdiction will apply to contractual disputes, so the parties themselves choose. If the parties have not chosen, well then the contract law applicable will be the law of the country where the employee carries out his work. If the employee is not fixed in one country, the applicable law will be the law of the country where the business, the employer is located. There is an exception. If a contract is more closely connected to a particular country, the law of that country will apply. And in terms of deciding what is a connection, issues or factors that will be looked at would include where the employee is based, how the employee is paid, what currency he or she is paid in, how is the employee managed, how are disciplinary issues and grievances and so on dealt with and from where. So there may be a HR office set up or situated in one particular country. These are all factors that will be looked at in determining whether there is a particular connection with an employment contract to a particular country or not. Jurisdiction then, which courts can hear disputes? The relevant regulation is Brussels 1 recast. So employee can sue number one where the employer has its registered office or is domiciled or the employee can sue where the employee works. The employer on the other hand can only sue on foot of the contract of employment where the employee is domiciled, notwithstanding the jurisdiction clause in the contract. This means that if the jurisdiction clause in the contract says this contract will be governed by the laws of the United States but the employee is working in Ireland, well then the employee or the employer can only sue the employee in Ireland. That would be for a breach of contract or on foot of the contract. There is also a directive called the Posted Workers Directive. This protects workers who are temporarily posted or transferred to another EU member state. It provides that such workers should enjoy the same rights, terms and conditions as workers in the host state. So if you are posted to Germany, well then you are entitled to the same rights and terms and conditions as German workers or Italian workers if that's the case and so on. In conclusion, this is a potentially complex area of law. You would be strongly advised to get legal advice. My name is Terry Gorry. I'm a solicitor in Enfield in County Meade and if you find the video any way useful at all you might give it a thumbs up down below and you may be interested in subscribing to my YouTube channel. Thanks for watching.