The challenges of hiring international lawyers post-Brexit

A unique tension for life science companies is emerging between the opening of borders driven by flexible working post-pandemic and, simultaneously, restrictions on the flow of talent between key hubs such as Switzerland and the UK post-Brexit. In a fiercely competitive market, how can life science companies battle these opposing forces, and in particular, how does this affect recruitment of top in-house legal talent?

Impact on life science companies

Historically, working in the European headquarters of a prestigious life science business has presented an exciting and realistic career opportunity for lawyers across Europe, with many cross-border appointments being made each year.  Companies in Switzerland and the UK, in particular, regularly hire lawyers from across the region.  The opening of borders, facilitated by flexible working, signals a move from ‘presentee-ism’ to tapping into a broader, global talent pool.  “The focus is on outputs rather than inputs”, as noted by Alasdair Moodie, EMEA GC for Mundipharma.

On one hand, the pandemic has created significant flexibility and many companies within Switzerland have opted to allow employees to work in different cantons rather than corporate headquarters. Similarly, UK-based companies have migrated to hybrid working models, which create considerably more flexibility for employees to choose where they work.

Conversely, problems arise when the Swiss- or UK-based HQ seeks to recruit a top candidate who cannot relocate and insists on working from their existing base, or from a second home in a completely different country. How can this be reconciled?  Historically, many lawyers made the weekly commute between where they live and the country where they work, but these borders are gradually closing and there is an increasing sensitivity to the domicile of an employment contract. 

One historical solution for big pharma companies has been to hire that individual using an affiliate as the contracting party to avoid the individual creating a permanent establishment for the corporate HQ, provided the individual is not deemed to be a ‘decision-maker’ under local tax law. As such ,the employee is co-located with affiliate staff. However, current hiring activity in the legal community is being driven predominantly by much smaller bio-tech and pharma service companies who do not have a sophisticated affiliate network. This is therefore not an option and, despite the demand to hire international talent, these companies are faced with more complex hiring decisions.

Impact on individual candidates

For individual candidates, flexible working allows them to cast their geographical net more widely, but they must still pay attention to the amount of time they spend abroad to avoid triggering adverse tax consequences.

For example, the UK has set a limit of 180 days that can be spent in the UK in a given tax year in excess of which the individual is treated as if domiciled in the UK and subject to the UK tax rates.  In Switzerland, Schengen visa holders are permitted to stay for a maximum of 90 days in any 180-day period.

Possible Strategies

Life science companies without an affiliate network still have the appetite to hire diverse, internationally qualified lawyers. How can they achieve this?

• Global mobility policies require cross-departmental collaboration

As HR departments increasingly embrace global mobility policies to broaden the corporate talent pool, this will call for collaboration across legal, tax and HR.  The fact that the business seeks to relocate an individual in a different country for commercial convenience may overlook visa, tax, and employment considerations. However, commitment to generous re-location packages for lawyers will encourage a commitment for a senior lawyer to move rather than commute. If, post-Brexit, weekly commuting is no longer an option between the UK and mainland Europe, then companies must find a way to attract and retain international talent in the local market.  

• Dangle the carrot of temporary secondments or rotations

EU, EEA and Swiss citizens and other non-visa nationals do not require a visa when visiting the UK for up to 6 months; however, they will need to apply for the Right to Work. This could provide a valuable source of talent to the existing team and provide a developmental opportunity to the individual concerned. This would provide ‘organisational glue’ for the legal department and a carrot to participating lawyers.

• Diversify and innovate sourcing

Access to international talent will always be important for the legal community.   A rich and diverse legal team adds significant value. When sourcing, companies must renew their efforts to find diverse candidates within their own legal communities. All of the big 5 markets within Europe have diverse legal communities and the local market is sometimes overlooked in favour of higher profile international moves.

• Retaining existing european staff through employee engagement

Sarah Marshall, VP (International and Japan) for Astra Zeneca/Alexion Rare Diseases, notes that the most popular methods for increasing employee engagement include flexible or hybrid working, learning and development opportunities, work-life balance, in-kind benefits, and a collaborative and communicative working culture.

Above all, it is worth remembering that smaller companies can still compete for talent and access international legal talent if there is a strong and creative hiring strategy. Any strategy must also enforce the principles of robust re-location and commitment to diversity and strong retention.