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05 December 2018
In today's globally interconnected world of work, cross-border issues play an increasingly prominent role – particularly for corporates with a multi-jurisdictional presence in the European Union. However, in view of the United Kingdom's impending departure from the European Union, questions of structuring in this context have taken on new meaning across the board.
In employment contracts with a cross-border reach, it is always necessary to determine:
Where a dispute arises between an employer and an employee concerning the applicable law, it is first necessary to assess whether the objectively applicable law was deviated from by way of a choice-of-law clause. If so, it is then necessary to determine whether this affects the objectively applicable law's mandatory provisions and whether these are more favourable to the employee than the law chosen.(1)
If the level of protection offered to the employee is lower as a result of the choice of law, the deviant provisions are superseded by the objectively applicable law. Therefore, the choice of law must not result in a less favourable situation for the employee than would apply under the applicable law.
The assessment must focus on the issue at stake. In this context, all provisions relating to a particular issue must be compared as a whole (eg, compliance with a minimum notice requirement).
If the advantages and disadvantages of a particular jurisdiction are mutually interdependent, the employee is not permitted to claim the respective individual advantages (ie, 'cherry picking' is ruled out).
For further information on this topic please contact Anja Glück or Hans-Peter Löw at Allen & Overy LLP by telephone (+49 69 2648 5000) or email (firstname.lastname@example.org or email@example.com). The Allen & Overy LLP website can be accessed at www.allenovery.com.
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