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Employee moving from UK to US: Continuous Employement question

Anka

| 0 Posts

13 Mar, 2018 18:07

We have an employee who will move to our wholly-owned US subsdiary, working on a US contract and paid via the US payroll (this is not a secondment).  There is no guarantee that we would re-hire them in the UK if they decided to come back, we might not have a role for them here, so I am planning to send them a letter stating that the terms of their previous UK contract will no longer apply. 

Questions:

1. I presume we are not obliged, if they were to return, to keep their continuous employment date as the date they first started in the UK?  

2.  Provided my view on  1. is correct, am I being mean...?  Would the collective wisdom of the Forum be to keep their continuous employment date in case they need to access US benefits more quickly (there are waiting periods there) and in case they return to the UK?  

Thanks!

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  • Ray

    | 0 Posts

    13 Mar, 2018 19:03

    Hi Anka,

    Once they cease to be an employee of the UK company and take a local american contract with a different employer, there is no legal right to consider that the UK period counts as continuous employment for the US employer. Equally, if at a later date the person returns to the UK employer and leaves the employment of the US employer there is no legal obligation to recognise previous intra-group service as continuous employment.

    On the other hand...... in my experience, when mobility occurs within the same group of companies, it is usual to recognise employment with another company as being continuous, and clauses are usually inserted in to contracts to reflect this. IMHO you are being mean. Why would you not want to do this?

  • David

    | 0 Posts

    13 Mar, 2018 19:14

    In reply to Ray:

    Hi Anka

    Not sure about US employment law, but my understanding is that UK employment law would treat the uk and us branches of the same company as ‘associated employers’ for continuity of service etc provided there was no clear break between the moves. So if the employee did return from US Branch to the UK without breaking service between the two, Employment, the US spell of employment would count towards UK continuity of service with the same employer. See
    books.google.co.uk/books
  • Kevin Elvidge

    | 0 Posts

    13 Mar, 2018 19:15

    Hello Anka
    Technically, the terms of the US job offer could be with or without credit for past service within the group.
    If you wish to retain the services of the employee within the group in the future, you may want to consider sending a positive signal to the employee by giving credit for past service for periods spent both in the UK and the US. ( albeit adding to potential future costs to the company for service related benefits or entitlements)
    IMO it's a matter of how strong your desire is to retain the employee in the long term and whether are prepared to take the extra potential cost in the future by giving credit for past service.
  • Anka

    | 0 Posts

    14 Mar, 2018 11:22

    In reply to Ray:

    Thank you very much for the reality check!

    I promise I am not usually mean - I am just a bit reticent about this because this was led by the individual themselves and we have gone a long way to accommodate them. At their level, there will likely be no job for them if they decided to return. I am happy for the US office to recognise their UK service which means I need to be very clear with the individual that there is no automatic right to return to the UK, nor would we apply UK standards of redundancy pay etc. if they left or the US office let them go.
  • Anka

    | 0 Posts

    14 Mar, 2018 11:25

    In reply to Kevin Elvidge:

    Thank you. My main concern is not the continuous service as such, but the potential expectation of the employee of being able to return to a job in the UK which we are unlikely to be able to accommodate. I want to be crystal clear that a US contract is a US contract with all that entails.
  • Anka

    | 0 Posts

    14 Mar, 2018 11:27

    In reply to David:

    Thanks - that's very interesting and I'll look into it for future reference.
  • David

    | 0 Posts

    14 Mar, 2018 11:39

    In reply to Anka:

    Hi Anka

    Why not simply require employee to resign before they take up the US appointment and spell it all out that no prior service etc will count towards it and that it’s a fixed term etc etc. And ensure that between resignation date in uk and start date in USA there’s at least one full calendar week gap otherwise it won’t in law be a service break