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Tom RedfernLLB (Hons)
Head of LegalFitzgerald & Law
Professional Advisory Services
Rachel Lockwood BSc (Hons), ACA, CTA
PartnerOury Clark
Chartered Accountants
GLOBAL READYInternational Growth Strategies for SMEs: The Legal Aspects of Setting up in the UK
January 25, 2012, Charlotte NC Session 2
Tom Redfern, Head of F&L Legal LLP
www.fitzgeraldandlaw.com
London San Francisco
Agenda
Independent Contractor v
Employee
UK Employment Law Update
How to protect IP in
the UK
www.fitzgeraldandlaw.com
London San Francisco
Independent Contractor v Employee
Both sides may be drawn to the Independent Contractor route because:
Cheaper:
No employer tax to pay
No holiday pay
No employee benefits
No tax deducted at source
More flexible:
Rights of termination
Ability to work for others
No specific working hours
No visibility for the principal:
No payroll registration
Engagement can be via US entity
www.fitzgeraldandlaw.com
London San Francisco
Independent Contractor v Employee
• Similar rules to the US
• Whatever the language of the contract, the UK tax authorities will look at the circumstances, such as…
Is the contractor providing services for more than one client?
Is there a right of substitution?Are there variable fees?
Can the contractor hire someone else to do the work?
Is the contractor provided with tools/equipment for the work?
www.fitzgeraldandlaw.com
London San Francisco
Independent Contractor v Employee
Dangers of Contractor Route
• IP vests in the contractor unless stated in the contract
• No duty of trust/good faith exists
• Contractor will usually have no PI insurance
• Tax liability if authorities determine it is an employer/employee relationship and cannot collect tax from the employee
• Contractor can seek clearance from authorities to determine the status of the relationship but this is not customary and puts the relationship on their radar
www.fitzgeraldandlaw.com
London San Francisco
Independent Contractor v Employee
Governing Law and Jurisdiction
• Employee relationship: must be governed by English law
• Contractor relationship: can choose a US State’s law andlikewise jurisdiction venue is a matter of choice
• If you want to bring a claim: better to choose English law andthe English courts
UK Employment Law
www.fitzgeraldandlaw.com
London San Francisco
UK Employment Law
• Written contract
• Under English Law
• No employment ‘at will’
• No PTO days
• Minimum paid holiday entitlement
• No Maximum working hours
• Sick pay rules
• Restrictive covenants
• Protection against dismissal after 12 months service
www.fitzgeraldandlaw.com
London San Francisco
UK Employment Law
Simplest way to dismiss an employee:
• Give notice before 12 months service expires
• Comply with the terms of the employment contract
OTHERWISE you won’t be able to enforce post-terminationrestrictions in the contract
• From April 2012, the ‘12 months’ rulewill change to 2 years (better for employers)
Compromise Agreement
Intellectual Property: Protecting IP in the UK
www.fitzgeraldandlaw.com
London San Francisco
How to Protect IP in the UK Intellectual Property Update
Different types of IP
• Patent: registered
• Trademark: registered/unregistered
• Design: registered/unregistered
• Copyright: unregistered
www.fitzgeraldandlaw.com
London San Francisco
PatentsIntellectual Property Update
Patents
• Limited life span
• Can be EU or UK wide
• Annually renewable
• Expensive
Trademarks
• Valid so long as registration renewed
• Can be EU or UK wide
• Renewable every 10 years
• Covers the 45 different classes of goods or services required
www.fitzgeraldandlaw.com
London San Francisco
DesignIntellectual Property Update
Design
• Valid for 25 years
• Can be EU or UK wide
• Renewable every 5 years
Copyright
• Cannot register
• Valid for the creator’s life + 70 years (except songs, which is 50 years)
• Software and databases can be protected as literary works
The End
Thank you for listening
London Office8 Lincoln’s Inn Fields London WC2A 3BP
+44 20 7404 4140info@fandllegal.com
North America Office 388 Market Street, Suite 1300, San Francisco CA94111
+1 415 7289815info@fitzandlaw.com
www.fitzgeralandlaw.com
Tom Redfern+44 20 7430 5886
tredfern@fandllegal.com
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