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Employers of legal talent throughout Europe have seen their recruitment and retention efforts buffeted over the past three years by two strong forces: the exit of the U.K. from the European Union, and the tilt toward remote working brought on by the COVID-19 pandemic. 

Jerry Temko and Lisa Owens, managing directors of Major, Lindsey & Africa and members of the recruiter's EMEA in-house counsel practice, spoke recently with Law.com International about the challenges legal departments in Europe are facing from these two trends.

The conversation has been edited for length and clarity. 

Q. You both work frequently with life sciences companies. Why has Brexit been a particular challenge for these companies in their recruitment of in-house legal talent in Europe?

Jerry Temko

Temko: The major hubs of life sciences companies are in the U.K. and Switzerland, and there has often been a shuttle of people between the two countries. That is obviously challenged now, thanks to Brexit, and due to changes in the Swiss cantonal system, which restricts the number of non-Swiss nationals that can be hired in senior roles.

So, there isn't quite the fluidity or flexibility that there once was, and companies are having to become more creative in terms of tapping into top talent. 

At some point, though, the question of a longer-term commitment will come up. And we are also seeing an increasing trend toward remote working, especially for certain kinds of legal roles. And that is adding to the complexity.

Q. Which in-house legal roles lend themselves to remote working, and which require more presence in the office?

Temko: It depends a lot on the risk profile of the company. If you are a lawyer in the privacy sphere, you pretty much can set out training, policies, monitoring, and delivery of remote advice more readily than you might in a role that requires more rapport and leading face-to-face. For example, the nature of a compliance officer's role really requires someone to spend the time getting to know the business and the people and developing "followship." 

Transactional lawyering, which puts more of an emphasis on drafting and negotiation, can be done through SharePoint and by other tools that enable one to get the job done.

Q. How have companies' attitudes changed toward letting their in-house legal staff work remotely?

Owens: The trend toward people working remotely is increasing, but generally within the country in which they're employed. At the beginning of the pandemic, there was an assumption that if remote working continued, you could go and sit on a beach and do your job from anywhere. And that hasn't translated into reality. There's not much appetite to hire someone for a role in Switzerland who wants to sit in their holiday home in Spain.

I think it's still evolving. I don't think it's a settled picture yet.

Q. What solutions do you suggest to your clients who want to build a cross-border team within these constraints?

Temko: In cases that Lisa and I have worked on, we tried to find areas where companies could set up a temporary secondment, within a three-to-six-month period where this was allowed by local law. That's one way to promote cross-pollination of ideas and team building within a given department.

Another area is contracting a permanent hire through a local affiliate, provided that this individual was not identified as a key decision-maker, which might cause issues from a tax and a permanent establishment perspective.

And then, in terms of further creativity, it is worth trying to enhance managing a remote, and geographically dispersed team through frequent video conferences, offsites, or other ways to keep the linkage working.

Q: What has been the response of companies you work with?

Lisa Owens

Owens: It depends on a lot of factors: the size and structure of the company, how established they are, and of course what is their home country.

Recently we were handling a very senior role in Germany, and the client said that as long as it was a German-speaking lawyer, as far as they were concerned, they can be based anywhere because they are a company with a lot of affiliates. But if that was a less mature company or a company that worked through distributors rather than an affiliate network, they wouldn't have that physical capacity to employ someone. So, their talent pool would be much more limited.

Q: Where does the top talent in life sciences come from?

Owens: The lawyers that we deal with at the senior end of the market have started in private practice and have already got some in-house experience. A typical pattern would be Big Law to Big Pharma to a smaller company—say, Bird & Bird to Novartis to biotech.

But some of the countries we work with are much more domestic. For example, you would tend to hire a French lawyer for a role in France. Germany is becoming more international, I think. The Netherlands is a very international market. The U.K. is very international, and Switzerland is very international. But then, as Jerry said, you've got these new rules and quotas about how many non-Swiss lawyers those companies can hire.

Q: Has the compensation offer been affected by this new context?

Owens: We haven't had a situation where, say, a company offers less for someone who wants to work remotely. In fact, the opposite can be true. Take a German company that wants to be completely flexible about where they hire, and they find someone who wants to live in Switzerland. They know that it will cost them an extra 30% to 40% just to be competitive. So, the person has got to be absolutely perfect to justify that premium.

The flip side is, if you're looking at this in the context of Brexit, there may be a reluctance of people to move now. Normally, for a European role, we would be approaching German lawyers in London to go back home, or French lawyers to go back home to France, or Swiss lawyers to go back home. But there are a certain number of Europeans who were in the U.K. at the time of Brexit and want to stay in the U.K. to get "settled status," or long-term residency papers. And a lot of those are rooted in the short term.

Temko: We've had a couple of examples where, when we asked various candidates about their willingness to move back to their original homeland, they demurred: "No, I really want to wait for my settled status. If you can find something for me locally in London, that's great."

Q. Have you seen a generational or geographic difference in the willingness of in-house lawyers to move, especially between the U.K. and the continent?

Owens: At the junior end, people are still happy to move back and forth and are less emotional about their decisions. At the senior end, the U.K. is much less attractive than it was—politically and economically. There are a lot of senior lawyers who might, pre-Brexit, have considered a move to the U.K. who now say it's not an attractive place to come and live, and, as it's no longer part of the EU, it feels more distant. 

 A number of very senior people who just told us,  "No, thanks," would have been much more open-minded a few years ago.

Temko: Those people I know who lived in Switzerland are there for the duration. It is a high cost of living, but from a quality-of-life point of view, it is a lovely place to live. And the same is true of Munich, which also has a very strong biotech area.

But at the moment, I think Lisa and I are seeing major tectonic plate shifts. In the big Swiss pharma companies, you have almost a glut of very seasoned lawyers, many of whom would be fabulous for the comparatively few roles that are available. So, people who are being restructured and hoping to find similarly senior roles elsewhere will be challenged. And then they may have to make a decision: Do I need to move out of Switzerland in order to find a role commensurate with my career trajectory and aspirations?

So if you see a situation where you've had a very cushy existence in Switzerland, and then your market for future life sciences roles is outside of Switzerland, the reasons for moving would have to be compelling.