International Contracts and Legal Representation

Introduction

The idea of working abroad for a few years has many attractions, and the world is enriched when people take up the opportunity. This is especially true when teachers decide to work overseas because it encourages cultural mixing and provides them with experience that will be valuable for the rest of their careers. So in principle working abroad is something anyone should seriously consider if their personal circumstances allow it. There are, however, some pitfalls to avoid and some dangers to take into account, and they may not be obvious when we make an application to work abroad from a cosy home in our native country where we more or less understand "how things work", speak the language fluently and have some idea of our legal rights.

Contracts

Contracts drawn up between international employers and employees are typically defined according to the legal system in the host country, and almost always contain a clause that stipulates that the local legal system will be the one in which any dispute will be heard and settled. This can present serious difficulties for an international employee, for reasons we address below.

Contracts may also be written in a foreign language and, even if a translation is provided, the language of the home country is stipulated to be the one that defines the terms of the contract in any circumstances where there is a discrepancy. This means that someone who relies upon a translation also needs to ensure that the original native-language version says the same thing and means the same thing when interpreted within the legal system of the host country. Clearly this requires knowledge of the local legal system that most potential international employees do not have.

Employment law and, more significantly, employment practices vary sharply from country to country, as does respect for contractual undertakings. Some employers play on their privileged access to local legislators, their position in the local economy, and their superior command of both language and the nuances of legal practice to take advantage of employees by setting aside aspects of contracts that do not suit them.

The recruitment process is also a minefield for unwary international employees who expect things to proceed in predictable and honourable ways only to discover that local practices are neither. For example, in some countries contracts only apply to 11 months of the year and payment for the twelfth month depends on extension of the contract. Someone whose contract is not renewed must then face a month with neither pay nor, in some cases, accommodation.

Medical, travel, visa and other benefits are also problematic. Medical insurance does not always cover every eventuality, and international employees should ensure that the policy they are offered meets all their needs, perhaps by insisting that it be underwritten by a respectable international insurer. Costs of repatriation in cases of severe illness should be considered and, where possible, covered.

Visas are tricky because they often cannot be obtained in advance of employment, yet to be employed you need to be reasonably sure to be granted a visa. The usual procedure is for the employer to provide a letter of invitation following signature of a provisional, conditional contract, and for that to be submitted to the relevant embassy or high commission who will then consider the application in their due process. The process can take a considerable length of time, so be sure you have your passport ready and that you don't need it for other things while they consider your application. If there is any likelihood that you will not obtain the visa before your contract start-date, make sure to negotiate in clear terms, in writing with your future employer how that will be handled and whether you will be reimbursed in the meantime. Be very cautious of employers who pretend the process is simple or that they "don't need to observe the rules" because finding yourselves in a foreign country under suspicion of having breached the terms of your visa is not an experience you want to have. Some countries issue provisional visas for entry and then you must reapply for a conversion to an employment visa once you arrive. This is somewhat nerve-wracking, so make sure your employer's HR department understands what is involved and how to negotiate their way through the process.

Sick pay practices can easily take international employees by surprise if they assume that the same principles apply in a foreign country as apply in their own. Absences for prolonged periods of time over such things as positive covid tests may result in loss of remuneration; some employers will terminate contracts if employees are absent or under circumstances over which an employee has no control, for example being required by law to self-isolate on the basis of a positive test even if there are no accompanying symptoms.

There is very little to be gained by having recourse to law in any of these circumstances because the employer will be local and have a far greater influence over the process than an employee. In some cases an employer will carry such weight and influence as to make it impossible for an employee to secure legal representation at all. So the message is that the terms in the contract may benefit the employer, but they are very unlikely to benefit the employee in circumstances where there is a dispute. Caveat emptor!

Attitudes to hours of work are variable across the world. International travellers who are used to the idea that work starts at a particular time and ends at a particular time and that outside those hours their time is their own can have a rude awakening when employers expect them to work whatever hours they find convenient or necessary. In some cases failure to reply to emails and text and other messages late at night is interpreted as lack of commitment; weekends are certainly not sacrosanct in many countries; there is no automatic assumption that overtime or out-of-hours work will be compensated in any way, even with time in lieu.

One final point is that attitudes to contracts differ from country to country. Whereas someone working in Europe might expect the terms of a contract to be honoured more or less automatically, this cannot be assumed in much of the rest of the world. Employers take the view that employees are there for the good of the company first and the employee only a very distant second, so if something happens that displeases an employer or their demands are not met readily, however unreasonable they might be, they can respond unpredictably.

Is It Really That Bad?

A reader may wonder whether all this is an exaggeration, and certainly it would be particularly bad luck to encounter all these bad practices under one employer all at once, but nothing on this page is without evidence and a basis in fact, and many of the practices described have been experienced directly or indirectly by members of Edsil or people we have advised.

Recruitment

As if these contractual complications were not bad enough, the recruitment procedure can also give rise to legitimate grievances.

Make sure that any costs you incur in travelling to interviews will be reimbursed if that matters to you. Some employers take the view that these costs should be borne by the potential recruit because they should demonstrate some commitment to the position they are applying for.

Applicants can be too timid during the application process and refrain from asking perfectly reasonable questions about such things as remuneration, visa costs, travel entitlements, medical and other expenses, and whether accommodation is provided and, if so, whether it is furnished and to what standard. Conversely, applicants can be too aggressive and make unreasonable demands or appear too interested in money and insufficiently interested in the job, the company, the place or the country where they will be working. The best attitude is that a successful application will be good for the applicant and good for the company, so there should be a meeting of minds on most things and a spirit of "win-win".

Another place where employers can behave unpredictably is over an employee's decision to leave. When that is at the natural end of a contract, things are usually reasonably smooth, but take note of any clauses that permit the employer not to pay the final month's salary, and make sure that terminal bonuses are clearly understood. In fairness to employers it should be acknowledged that some employees also behave badly by giving minimum notice periods or no notice at all and simply walking off the job. Be aware that some countries have national laws about maximum and minimum notice periods and that contracts, however drawn up, cannot override them, so a contract that stipulates three months' notice cannot be enforced in a country where the maximum notice period is 30 days. That, of course, can work both ways.

Probation periods are not uncommon throughout the world, but sometimes there are legal traps buried in their terms that are not at all clear from the contract. In some countries, for example, international staff have virtually no employment rights compared with locals, and can be dismissed within a certain period of their start-date in ways that leave them with absolutely no redress however unreasonable the process or extreme the employers' behaviour that prompts the termination. Employees should also ask for clear indications of the basis on which their probation will be assessed. Being ready to work all hours for no additional remuneration is not a reasonable criterion to use in evaluating a probationary performance, for example.

Recruitment Agencies - head-hunters - are paid by the employer, sometimes very generously, based on whether they successfully recruit staff of the quality the employer requires. By fielding strong candidates they make themselves look good, and it doesn't much matter to them whether a particular candidate gets a job. Why should it? Once you get an interview, the rest is up to you. It is not therefore reasonable to expect a recruiter to "dish the dirt" on an employer, even if to some extent their reputation as a recruiter works both ways and the best ones will not work for employers who have bad reputations. In particular, it is not reasonable to expect a recruiter to be entirely honest about the reasons for a vacancy, especially if a previous incumbent has left under a cloud. The best recruiters will be open and honest, but not all. They have to earn their crust, too, so they will do their best to present the employer in the best light all other things being considered. Again, it must be caveat emptor!

Remuneration

It is important to be clear what matters to you when it comes to remuneration. Some international staff need to remit money to their home country to pay bills, rent, fees, debts and many other things. If that is so, the most important question is what your net take-home pay will be and how much you will have left after you have paid all your local expenses and living costs. These are not easy matters to decide, but it makes it vital to have a reliable picture of local tax rates, rents and living-costs before you decide whether the package you have been offered is reasonable. There are websites that provide a lot of this information. It can be especially useful to know which countries and cities are particularly expensive because what can look like a huge salary can disappear very quickly once rent, food, transport and other things are taken into account. A good HR department will respect these concerns and take trouble to provide you with help. An HR department that is indifferent to such matters may indicate an employer you would be better off not working for.

Remuneration can also be a source of tension between international and local employees if they are paid on markedly different scales and bases once additional costs like international travel are taken into account. How an employer treats local staff is a very good indication of how they see their staff generally, which will eventually include "you" if you go to work for them.

Remedy?

Can employees do anything to mitigate their vulnerability to this kind of malpractice? One thing that can certainly help is for a potential employee at the recruitment stage to ask to speak to an existing international employee at the company or someone who has worked for them in the past and left under favourable circumstances, i.e., not a disgruntled employee who might give a biased picture. Employers should expect to be provided with references; there is no reason why an employee should not be afforded the same rights. Refusal on the part of the employer will probably tell a potential employer everything they need to know.

High staff turnover is almost always a negative indicator of the kind of employer. That isn't always true because sometimes there will be other circumstances to take into account, but if an established company or school that has reached some kind of "stasis" suddenly needs to recruit large numbers of international staff, it is usually a bad sign that relationships with senior managers are not good.

Compromise

Despite all this, it is important not to expect perfection. Living and working abroad is bound to throw up some challenges, and many of them will be reflected in different attitudes to relationships between employers and employees, but they should not be so different as to make life for employees intolerable or to throw up ethical or employment issues every day.

If you go to work at a relatively new school or company, expect teething troubles: it is very difficult to get such enterprises off the ground, and some degree of compromise is to be expected out of good will towards the employer. But that doesn't stretch to allowing yourself to be treated like a servant with no entitlement to time off, respect or any of the other things that make for good positive relationships.

Both Sides of the Story

We often only hear one side of a story. A disgruntled ex-employee has no reason to be fair to an employer or to tell "the truth, the whole truth, and nothing but the truth". There will always be two sides, and usually more to it than meets the eye. There are plenty of cases where what at first sight appears to be completely unreasonable, irrational or exploitative behaviour by an employer becomes perfectly reasonable when more information and the real circumstances emerge. It is important, therefore, not to rely entirely on one person or one story: try to triangulate; ask different people a range of questions and try to form a view of the ease and honesty with which they answer, whether they feel in any sense under pressure to be loyal or even dishonest, and then take a view. One of the most telling questions ever asked of a potential employee from a referee is "Would you employ this person again: with great enthusiasm; yes but with some reservations; possibly; no?" Potential employees can ask the same question of an employer: "Would you work for this company or person again?"; and where they can, they should.

Conclusions

Working outside your home country offers enormous benefits and is something to be recommended to anyone whose circumstances permit. These remarks are not intended to put you off, just to help you to make the experience as trouble- and stress-free as possible. Good luck!