When you began your legal career, why did you choose employment law?

The 1990s felt like the Golden Age of employment law – employment protections were expanding rapidly (thanks to Europe), opportunities for pushing the boundaries and progressing in employment law seemed limitless; even the Prime Minister and his wife were employment lawyers. All of life was in employment law – power imbalances, relationship struggles, societal prejudices and biases, human ambition, vulnerability and frailties, and so much more. It was the most exciting area of law to go into at that time (and probably still is now), and everyone wanted to be an employment lawyer. I was lucky enough to have great mentors and sponsors who supported my progress and gave me international work that I loved, fantastic opportunities to learn, and, in time, the potential to travel. Employment law opened doors for me that I never expected and which, to this day, I genuinely appreciate.

Looking back on when you set up CM Murray in 2006, what were your key motivations for founding the firm?

I set up the firm in 2006, not long after recovering from aggressive breast cancer and undergoing a year of treatment. My perspective on life and what I wanted to do with it, changed as a result of that experience. I did not feel constrained by my previous firm, but I had always had an entrepreneurial side, and I felt that if I did not set up my own business after going through that, when was I ever going to do it? I wanted to create a law firm that specialised in employment and partnership law, which was flexible, internationally focused and gave us the opportunity to be creative. It was built around the values of trust, integrity and transparency. Clients especially liked the fact that our advice was always based in the real world, and that we helped them to make realistic and informed choices. Technical excellence, rigour and client empathy were very important to us. Those values and principles remain at the core of our firm and our ethos today.

What are your reflections on the firm’s growth and development since then?

At the time I set up the firm, there were only one or two City employment boutiques, and we wanted to be extra-special by being the first ‘Employment & Partnership’ boutique and set out our stall accordingly. Over the last 17 years we have focused on deepening our bench strength and reputation in those areas, and also expanding into specialist related areas, such as equity issues, corporate governance, professional regulation, and partnership structuring.

You specialise in corporate sexual harassment matters; how do you navigate what must be a sensitive, stressful and traumatic situation for your clients?

I got involved in my first sexual harassment investigation as a junior lawyer and it was clear even then that these were complex, challenging and frequently traumatic situations where the truth was not always obvious, but the outcome could feel like a forgone conclusion. Historically, there was a risk that if allegations were raised they would be swept under the carpet, and the harasser would get to stay, largely unaffected, while the complainant would be exited with an NDA and terms. Thankfully much has changed since those days, particularly over the last five or so years – especially with regulatory intervention. The awareness of law firms, who are themselves under strong regulatory expectation to investigate conduct matters properly, is having a cascading effect in terms of the way they advise their clients. Employers and firms are taking it more seriously but there is still much more to do.

As a team we have so much experience in sexual harassment matters, from such different perspectives – whether advising the complainant, the employer, the accusee or witnesses, or acting as the independent investigator in the process. It is important to understand that whatever the rights and wrongs of the situation, sexual harassment allegations can have a profoundly stressful and traumatic impact on the complainant and the accusee (and often the witnesses around them too). It can affect their mental and physical well-being, their reputation and career prospects, their family lives, and in the case of the accusee, potentially their liberty.

Although many clients in the senior executives space are male, it tends to be an area with a large number of female lawyers. Why do you think this is and what is your personal experience working in the practice?

I think there are a number of reasons for the high level of female lawyers in senior executive work. Employment law generally has always attracted more women lawyers than other areas; it feels more inclusive and accessible and perhaps less macho than some other areas of law in City firms. There were always many high-profile women lawyers in this space, so you could see that there was a route through for women. Senior executives specifically need not only technical rigour, a strong business focus, and a high level of accessibility – but also strong professional empathy – and there are many brilliant women – and men – lawyers in the senior executive space who are able to deliver that for them. When it comes to potential wrongdoing, accusees are entitled to advice, and for them to have a specialist adviser with a huge amount of expertise in the area can help them to understand where they may have gone wrong. These matters are always factually very complex, and rarely black and white. Your client may be someone who had four thousand people reporting to them and, because of what’s happened, they might now only have you. It is extremely interesting and tactical work, so why wouldn’t women want to do it?

What was your experience as a special adviser to a House of Commons committee?

It was the most extraordinary experience and possibly the best and most enjoyable one of my career. I had been asked to give expert evidence at the opening hearing of the Women & Equalities Select Committee’s Inquiry into Sexual Harassment at Work, and after being grilled by MPs on the committee, I was later invited to apply, alongside others, for the role of Special Adviser to the Committee in their Inquiry.

For around four months I worked intensively with the Committee and its internal team as their Specialist Adviser on the issues in their sexual harassment Inquiry and the recommendations of the Committee following it. These included support for the EHRC proposed introduction of a mandatory duty on employers to take steps to prevent sexual harassment, and the reinstatement of employer liability for third party harassment (both of which featured in the recent Worker Protection (Amendment of Equality Act 2010) Bill), and also requiring the regulators to take a more active role in holding regulated employers and individuals accountable for acts of sexual harassment (which encouraged the SRA and FCA to significantly step up their existing efforts in this area).

Attending the House of Commons every fortnight, sitting in the Select Committee hearings with MPs and witnesses debating sexual harassment at work and how the law and policy could be improved to prevent it, and doing so at a time when #MeToo was at the forefront of the news and of people’s daily conversations, was an incredible privilege and an experience I will remember for the rest of my life.

What advice would you give to someone who would like to get to where you have in the legal profession?

With any luck, a career of 40+ years in law may lie ahead of you. It’s a career that can be incredibly rewarding, intellectually stimulating, and allow you to be creative and innovative. It will also give you lifelong friends.

So to anyone starting out, I’d say find an aspect of employment law that you genuinely love, and where you find yourself happily immersed in your clients’ knotty problems and potential solutions. Law is a demanding profession, even with flexibility, and you really have to want to do it. So helping yourself by finding that corner of employment law that you love, and in which you can build a profile and practice, will carry you a long way. If you can, also have a second string to your bow – whether it’s employment plus regulation, immigration, pension or tax – so that you have a wider offering and perspective, and other areas to develop into in future.

Also, get yourself a mentor, or even a direct sponsor, who will champion your career, give you opportunities and open professional doors for you. Be open to the helpful nudges that they may from time to time give you to help you stay on track in your career.

What do you plan to do in the future?

I plan to get as much balance as possible between work and life with my family, and to enjoy both much as much as I can; you simply never know what lies around the corner for you. Running a firm can be a joyful experience and can also at times be intensely and relentlessly stressful in a way which can be hard to understand until you do it yourself. So I want to take time to enjoy this fabulous firm that we have built and to support and encourage my colleagues on their journey, opening doors for them, giving them chances to be creative, and empowering them to succeed, as others did for me.

What changes do you feel need to be made in City law?

Some positive progress has been made in City law firms, particularly around diversity, inclusion and social mobility initiatives. But there is still so much to be done to ensure meaningful and lasting change to the profession, rather than tokenistic and “one and done” approaches to appointments, pay and promotions.

As long as PEP and short-term profitability remain the key metric of City law firm success, and financial contribution is (explicitly or covertly) the main factor in assessing individual performance, underrepresented groups of society will continue to be marginalised and struggle to progress to the most senior and executive levels of law firms.

It requires senior members of firms to work together to remove unfair obstacles that lawyers from under-represented groups face, as well as encouraging their participation and ensuring they aren’t prevented from achieving their full potential. The objectives, performance metrics, remuneration and progression of senior members should reflect and drive that imperative, to help drive genuine and effective change in our profession.

The ‘Prevention of Sexual Harassment Law (5758-1998)’ was enacted in 1998 with the primary goal of safeguarding the individual’s freedom, dignity, and privacy, and furthering gender equality. This statute proscribes a range of actions which constitute Sexual Harassment, encompassing:

• Blackmailing someone into performing a sexual act;
• An indecent act (one act is sufficient);
• Repeated overtures of sexual nature;
• Repeated references to a person’s sexuality;
• Making disparaging references to a person’s sex, gender, or sexuality, including their sexual orientation;
• Exploiting a hierarchical or authoritative role for sexual purposes;
• Executing acts with the intent of sexual gratification or debasement without consent;
• Disseminating photographs, recordings, or videos that focus on a person’s sexuality in situations that may lead to humiliation or degradation, without their consent.

The statute confers upon the employer the following duties: (a) to ensure a workplace devoid of sexual harassment, (b) to apprise employees of the prohibition of sexual harassment, and (c) to effectively address instances of harassment.

In pursuance of these responsibilities, the statute mandates employers to undertake the following actions:

• Employers with a staff of over 25 employees are required to adopt a prevention of sexual harassment policy. This policy must be aligned with the model rules stipulated in the law.
• Employers are obligated to disseminate their policy to employees and display it publicly, along with all regulations related to the prevention of sexual harassment.
• Employers must appoint a designated individual to oversee the enforcement of sexual harassment prevention within the workplace. This designated supervisor is vested with the authority to investigate sexual harassment complaints within the workplace. The statute expresses a preference for women to occupy this role.
• Employers are required to formulate effective mechanisms for receiving sexual harassment complaints and conducting investigations of such complaints.
• While the statute does not explicitly mandate employers to conduct training for employees in the prevention of sexual harassment, case law suggests that the absence of training could signify a failure to fulfill the employer’s legal obligation to provide a harassment-free workplace. Consequently, conducting regular training sessions across all workplaces is strongly advisable.

An employer who fulfils all the stipulated legal obligations is absolved of legal liability for the occurrence of a sexual harassment perpetrated by an employee. This approach is designed to motivate employers to promptly address complaints of sexual harassment, thus potentially protecting them from legal repercussions.

Employers must clearly demonstrate that they have taken all requisite measures to prevent sexual harassment within the workplace. Non-compliance with the aforementioned requirements exposes employers to potential civil lawsuits brought by aggrieved employees, in addition to the risk of fines and criminal charges brought by labour law enforcement agencies.

The actions and investigations carried out by the designated supervisor are subject to meticulous scrutiny by the courts. Inadequate handling of investigations of sexual harassment may expose the employer to litigation and legal proceedings and allegations of violating the law and promoting such inappropriate conduct of sexual harassment.

The handling of investigations into sexual harassment claims by the supervisor must be undertaken with sensitivity, efficiency, and due respect for the dignity and privacy of all parties involved. Comprehensive documentation, including investigation protocols and witness testimonies must be generated by the supervisor. Should supporting (or refuting) evidence be available, such as recordings, messages, security camera footage, or employee statements, swift collection and preservation are imperative to avert evidence loss. In certain instances, entrusting the investigation to an external expert, such as a former judge, may be advisable to ensure impartiality.

Given that sexual harassment claims may prompt police investigations as criminal proceedings, and owing to the sensitive nature of such cases, the labour court will scrutinise investigations and evidence, demanding irrefutable proof prior to adjudicating claims of sexual harassment.

In the preceding year, our employment department handled a sensitive case (Case No. 26461-05-18), involving a former senior employee dismissed due to sustained sexual harassment directed towards colleagues, encompassing intrusive inquiries, physical contact, and disparaging references with respect to sexuality and sexual orientation.

Following his termination, the former employee initiated legal proceedings alleging wrongful termination based on age and physical disability, while denying any involvement in harassment.

The sexual harassment investigation in this instance was conducted by an internal employee without legal accompaniment.

As part of his legal proceedings, the former employee contested the supervisor’s investigation, alleging an unfair investigative process. Specific contentions included: (a) a conflict of interest on the part of the supervisor due to a business association with the spouse, (b) insufficiently detailed protocols, (c) failure to interview all pertinent witnesses and discrepancies in testimonies, (d) the supervisor’s failure to apprise witnesses of the investigation’s nature and the posing of irrelevant questions, (e) the investigation’s continuance despite the absence of a complaint from the directly affected party.

However, since the court was presented with security camera footage depicting the former employee engaging in the harassment activities attributed to him, it determined as a factual matter that the former employee’s dismissal was directly precipitated by his sexual harassment, as opposed to age or disability discrimination as claimed.

The Regional Labour Court’s judgment criticised the employer for the manner in which the investigation was conducted. It is evident that if a clear evidence did not emerge due to the security camera footage confirming the alleged sexual harassment, the former employee might have succeeded in his claim of wrongful termination, and our client’s claim of termination due to sexual harassment behaviour could have been dismissed, due to unprofessional investigation without legal guidance during the performance of the sensitive investigation of sexual harassment

In conclusion, this case underscores the critical importance for employers to meticulously adhere to proper procedures when investigating and addressing complaints of sexual harassment within the workplace. This necessitates conducting well-structured investigations, implementing suitable protocols, exhaustively examining pertinent evidence, and ensuring the preservation of material documentation. This case also exemplifies the significance of seeking professional legal consultation pertaining to investigative procedures in such sensitive cases, and the formulation of comprehensive termination agreements to safeguard employers against potential future claims.

1. What are the key labour laws and regulations that govern the employer-employee relationship in Brazil?

In addition to the Federal Constitution, which provides an exemplary list of social rights in article 7, the main and most important regulation governing the employment relationship is the Consolidation of Labour Laws (CLT). In such law it is possible to find the consolidation of all the norms that regulate the relationship between capital and work.

2. Can you explain the rights and obligations of employers and employees under Brazilian labour law?

The rights and duties of employees and employers are numerous. As an example, the part of the CLT that governs the employment relationship has more than 625 articles, many of them with paragraphs and subparagraphs containing autonomous provisions. However, in general terms, employees and employers have reciprocal rights and obligations. The employee has the duty of obedience, assiduity, punctuality, collabouration, and respect for the internal norms created by the employer, loyalty, confidentiality and non-competition. They must obey the direct orders of the employer, as long as they do not constitute a crime or violate the legal system. On the other hand, the employer has the right to freely direct the provision of services, give direct orders to the employee, demand punctuality and attendance, as well as demand productivity from the employee in exchange for the monthly wage consideration. Both the employer and the employee must respect the labour law and always base their conduct on contractual good faith.

3. What are the common types of employment contracts used in Brazil, and what are their key features?

The most common employment contracts are the employment contracts for an indeterminate period and the probationary contract. They have similar characteristics, the only difference is that the contract for an indefinite period is the one that is carried out without a prior fixed duration and its termination depends on the need for a declaration by either party upon prior notice of at least 30 days. The experience contract has a fixed period of a maximum of 90 days and subject to resolute conditions. The purpose of the experience contract is to understand whether the hired employee has personal conditions to occupy a certain position in the company. At the end of the trial period, if the employer understands that the employee has not passed the probationary period, the contract may be terminated without the need for prior notice and payment of rights such as prior notice and land fine.

4. What are the legal requirements for termination of employment in Brazil, including grounds for dismissal and severance pay?

There is no legal requirement for termination of employment, for either the employer or the employee. It is not necessary to give reasons for termination, it is sufficient for either party to notify the other of its desire to terminate the contract. If the dismissal is without reason and comes from the employer, the following rights are due: 13th salary and proportional vacation, salary balance, indemnified prior notice and a fine of 40% on the Service Time Guarantee Fund (FGTS) balance. If the termination comes from the employee, the employer does not need to pay the indemnified prior notice or the 40% fine on the FGTS.

5. Are there any specific laws or regulations in Brazil that govern working hours, overtime, and rest periods?

Both the Federal Constitution and the CLT provide for a working day of eight hours a day and 44 hours a week, with a paid day off a week, preferably on Sundays. The CLT provides for the need to grant a daily break of one hour for meals and rest and the possibility for the worker to work up to two hours of overtime daily. It is necessary to grant a rest of at least 11 consecutive hours between workdays.

6. How does Brazilian labour law address issues related to vacation, holidays, and other leaves of absence?

Vacations is annual and 30 consecutive days, and may be divided into up to three periods at the employee’s request. The vacation time is the one that best suits the interests of the employer. Employees must rest on holidays, but there are economic activities that have special authorisation to work on holidays, and the employer must grant another day off or pay the workday with an increase of 100% on the hourly rate. There is a legal provision for numerous dismissals, worth mentioning maternity leave and leave due to illness or work accident. These licenses count as a service provision period and are remunerated.

7. Can you explain the process and requirements for hiring foreign employees in Brazil, including work permits and visas?

Every foreigner who decides to enter Brazil needs a valid visa in its passport, but after authorisation granted to the company, the law obliges the professional to request a temporary visa from the Ministry of Foreign Affairs. The company must request a work permit from the General Coordination of Immigration (CGI), an agency of the Ministry of Labour created to regulate the entry of workers from abroad. The foreigner must obtain a work and social security card and apply for registration in the Individual Taxpayers’ Registry (CPF) with the Federal Revenue Service within 90 days. Without these documents it is not possible to proceed with the contract.

8. What are the legal obligations for employers regarding workplace health and safety in Brazil?

Employers are required to follow a series of regulatory guidelines on occupational medicine, health and safety. Under article 200 of the CLT the Ministry of Labour may establish additional provisions on occupational safety and medicine, and in the exercise of this prerogative, there are currently 38 Regulatory Norms (NR) that are autonomous and mandatory for employers to discipline the subject.

9. Are there any specific laws or regulations in Brazil that address discrimination, harassment, or equal employment opportunities?

Yes, there are countless legal diplomas that deal with the subject. The Constitution and the CLT generally provide for legal mechanisms to combat discrimination. In addition to these norms, Law no. 9.029/1995 prohibits discriminatory practices for the purposes of admission or permanence of the legal employment relationship. Also Law no. 14.611/23 deals with the promotion of inclusion and the encouragement of female empowerment.

10. Can you provide guidance on resolving labour disputes or negotiating employment contracts in Brazil?

Labour disputes can be resolved extra or judicially through mediation, conciliation or arbitration techniques, both at the individual level (employee and employer) and collectively (dispute between companies and unions or between unions). With the exception of senior executives, employment contracts commonly signed in Brazil are by adhesion, that is, employers establish contractual obligations and wage consideration, and it is up to the employee to accept or refuse the job.

1. What are the key labour laws and regulations that employers in Taiwan need to be aware of?

Employers should be aware of several key labour laws and regulations. These include the Labour Standards Act (LSA), Enforcement Rules of the Labour Standards Act (Enforcement Rules of the LSA), Labour Pension Act, Regulations of Leave-Taking of Workers, Occupational Safety and Health Act, Employment Services Act, Act of Gender Equality in Employment, Labour Incident Act, and the Labour Union Act, among others.

The LSA stands out as the primary employment-related law. It dictates the basic terms and conditions of employment. The LSA is applicable to almost all industries and occupations, with only a few exceptions, and encompasses the vast majority of workers. Additionally, aside from a few managers who are explicitly governed by mandate agreements, employment laws and regulations also extend to foreign nationals working in Taiwan. This applies even if there are clauses in an employment contract that specify a different choice of law.

2. Can you explain the process for hiring and terminating employees in Taiwan, including any legal requirements or obligations?

For the hiring process, employers are allowed to conduct background checks on job applicants. However, the collected data should be limited to information essential for the job or required in the public’s interest, especially given the specific nature of the job position. In most scenarios, job applicants must also explicitly give their consent for such data collection. According to the Employment Service Act, employers are prohibited from discriminating against job applicants based on race, language, religion, gender, sexual orientation, age, marital status, and other similar reasons.

In Taiwan, employers cannot terminate employment contracts at will. Any termination must follow one of the specific conditions for unilateral termination as outlined in the LSA. A notice period or payment in lieu of notice is required. Legitimate reasons for termination include: (1) a halt in business or change in ownership; (2) business losses leading to a downsizing in operations; (3) operations paused for over a month due to unforeseen events (force majeure); (4) a shift in the business focus that results in fewer needed employees, with affected employees unable to be reassigned to other roles; and (5) the employee’s inability to fulfill their assigned tasks.

3. What are the rights and protections afforded to employees under Taiwanese labour laws?

According to Taiwanese labour laws, employees are entitled to participate in the Labour Pension Plan. Employers are responsible for contributing an amount equal to 6% of the employee’s monthly salary to the employee’s personal retirement account during their period of employment.

Additionally, employers are generally required to provide employees with statutory insurance coverage, which includes health insurance, labour insurance, labour occupational accident insurance, and employment insurance. Moreover, based on Taiwanese labour regulations, if an employee is terminated, they can legally claim severance pay. The amount is calculated based on the employee’s years of service.

4. How can employers ensure compliance with minimum wage and working hour regulations in Taiwan?

Based on Taiwanese labour practices, the labour regulatory authority periodically conducts random labour inspections on employers. According to the LSA, unless for employees in certain specific industries, a regular employee is allowed to work a maximum of eight hours a day (excluding overtime) and no more than 40 hours per week. They must also have at least two rest days in every seven-day period, consisting of one mandatory day off and one flexible rest day. Employers are obligated to maintain daily attendance records of their employees, documenting the exact minutes of their work attendance.

Starting from 1 January 2023, the statutory minimum wage is set at TWD26,400 per month and TWD176 per hour. However, the Minimum Wage Act is still being reviewed by the Executive Yuan and has not been submitted to the legislature for approval.

5. Are there any specific regulations or considerations for employers regarding workplace safety and health in Taiwan?

Yes, the Occupational Safety and Health Act mandates several responsibilities for employers to ensure the wellbeing of their workforce:

1. prevention measures: employers must implement appropriate equipment and strategies to reduce the risk of occupational incidents;
2. medical support: there are circumstances where employers are required to offer medical services and examinations to their employees;
3. equipment inspection: any equipment that poses potential risks must be thoroughly inspected and must adhere to specific safety standards; and
4. safety committees and medical personnel requirements: companies of specific sizes or those engaging in high-risk operations must establish a health and safety committee.

Furthermore, companies that meet these criteria are also required to employ medical professionals on their staff.

6. What are the legal requirements for drafting employment contracts in Taiwan, and what key elements should be included?

The enforcement rules of LSA dictate that employment agreements should encompass the following essential aspects:

1. workplace and assigned roles;
2. working schedule, such as the start and end times, break, regular holidays, rest days, annual leave, and shift rotation details;
3. payment terms;
4. termination cause and retirement conditions;
5. details on severance and pension benefits;
6. employee-borne expenses;
7. occupation health and safety;
8. education and training opportunities;
9. employee welfare;
10. healthcare support;
11. work rules, guidelines on discipline and rewards; and
12. any other relevant details pertaining to the rights and responsibilities of both the employer and the employee.

7. What steps should employers take to prevent and handle disputes or conflicts with employees, such as grievances or disciplinary actions?

According to Taiwan’s judicial precedents, all disciplinary measures must adhere to principles of clarity, consistency, and fairness, ensuring there is no misuse of power. When contemplating termination, the ‘last resort’ principle should be prioritised. For instance, an employee’s termination due to performance issues should first be preceded by a performance improvement plan. If not, such termination may be legally challenged.

In accordance with prevailing judicial precedents, direct deductions from an employee’s salary are typically deemed illegal. However, reductions applied to ancillary compensation components, such as bonuses, are permissible when executed with a clear and reasonable rationale.

8. Are there any specific regulations or considerations for employers regarding employee benefits, such as leave entitlements or insurance coverage?

According to the LSA, employees are entitled to annual leave based on the length of their continuous service:

(1) six months up to one year of service: three days of annual leave; (2) one year up to two years of service: seven days of annual leave; (3) two years up to three years of service: ten days of annual leave; (4) three years up to five years of service: 14 days of annual leave; (5) five years up to ten years of service: 15 days of annual leave; (6) more than ten years: an additional day of annual leave is added for each year, up to a maximum of 30 days.

Furthermore, it is customary for employers to provide their employees with mandatory insurance coverages. These coverages typically include health insurance, labour insurance, labour occupational accident insurance, and employment insurance.

9. Can you provide guidance on the legal requirements for employee privacy and data protection in Taiwan?

Taiwan’s Personal Data Protection Act (PDPA) governs personal data, categorising it into general personal information (GPI) and sensitive personal information (SPI), with SPI encompassing medical, genetic, and criminal records. While collecting GPI requires informed consent from employees, SPI demands explicit written affirmation, which can be digitally provided.

For multinational companies, it is imperative to exercise diligence when dealing with employees’ personal data, such as medical evaluations or mental health assessments. They must also ensure that cross-border data transfers comply with both the PDPA and any associated international regulations.

10. What are the potential legal risks and liabilities for employers in Taiwan, and how can they be mitigated or managed effectively?

When employers contemplate alterations to an employee’s working conditions or intend to reassign roles through mobility clauses, they must adhere to the following ‘Five Principles of Mobility’ set forth in the LSA: (1) changes should be based on the genuine operational needs of the business; (2) the employee’s compensation or other terms of employment should not suffer any disadvantageous changes; (3) adjustments must be tailored to match the particular skills and capabilities of the affected employee; (4) if these modifications result in the employee relocating to a less accessible workplace, the employer has a duty to offer assistance; and (5) employers must weigh decisions against the broader context, taking into account the employee’s family commitments and overall quality of life.