Session2 f&l uk business immigration, employment and ip update tom redfern - jan 2012

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



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




• 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?




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




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



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



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



How to Protect IP in the UK Intellectual Property Update

Different types of IP

• Patent: registered

• Trademark: registered/unregistered

• Design: registered/unregistered

• Copyright: unregistered



PatentsIntellectual Property Update

Patents

• Limited life span

• Can be EU or UK wide

• Annually renewable

• Expensive

Trademarks

• Valid so long as registration renewed


• Renewable every 10 years

• Covers the 45 different classes of goods or services required



DesignIntellectual Property Update

Design

• Valid for 25 years


• 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 [email protected]

North America Office 388 Market Street, Suite 1300, San Francisco CA94111

+1 415 [email protected]

www.fitzgeralandlaw.com

Tom Redfern+44 20 7430 5886

[email protected]

Documents

Session2 f&l uk business immigration, employment and ip update tom redfern - jan 2012