If the people of Scotland vote YES on 18 September 2014, one aspect that companies may not yet have focused on are the employment law considerations for those planning to relocate south of the Scottish border. A checklist of our top ten practical employment law considerations is set out below. This checklist may be of particular interest to those sectors with a large number of employees based in Scotland, but with headquarters or businesses in England, or businesses in the energy sector.
1. Check the governing law of the contracts of employment. Are they governed by Scots law, English law or by the laws of another country?
2. Check if the contracts of employment have a mobility clause. Is the mobility clause sufficiently wide to cover a move outside of Scotland?
3. Consider the legal risks and steps involved in changing employees’ place of work, particularly in the absence of a mobility clause.
4. Consider how and when you communicate the move to employees. Are there any workplace agreements in place which set out when this should take place? What does the relevant legislation provide for?
5. Is the move likely to be a place of work redundancy? Depending on the number of employees, are you in collective redundancy territory?
6. Are you confident that your key employees are willing to move or should you consider incentivising them, e.g. by offering a retention bonus?
7. Consider whether you are willing to pick up the relocation costs or contribute to these. What costs would you be willing to pick up, e.g. hotel stays, school fees etc.?
8. Will you have the resources you need going forward? For example, do you have an ageing workforce and will those employees nearing retirement look to leave employment sooner rather than face a relocation
9. If employees resign, are the notice periods required to be given by those in key roles long enough for you to recruit?
10 . Are you confident that the restrictive covenants provide adequate protection for your business? If in doubt, consider a period of garden leave for leavers.