Changes in working practices following the pandemic have resulted in employers receiving an increasing number of requests to work remotely from another country.
This article summarises some of the factors that should be considered and assumes:
- The employee’s normal place of work is the UK;
- The employer is a UK entity; and
- Any arrangement will be temporary.
It is important to ensure that employees know that they need advance approval before working remotely abroad. Requests should be dealt with fairly and consistently. A blanket policy regarding working abroad may amount to indirect discrimination unless you have an objective justification. Any agreement for an employee to work remotely from abroad should be recorded in writing. We would strongly advise instructing a lawyer to draft such an agreement. There are many factors to consider and steps to take before going ahead with any proposed arrangements, including:
- Check that it is possible for the employee to carry out their role lawfully from the country in which they are intending to work (the host country). For example, employees of companies who are regulated by a UK financial services regulator may be restricted.
- If the employee is a company director, check that the articles of association do not prohibit directors from attending board meetings remotely. The Chartered Governance Institute has published guidance to assist companies in using virtual board meetings during the pandemic.
- Check if the local law applicable in the relevant jurisdiction might create a situation whereby the employer would be considered to be operating in that jurisdiction and therefore subject to company law requirements in the host country.
- As the position relating to tax and social security contributions could become complex, both UK and local advice should be sought.
Employment rights and benefits
- On the basis that their employment will still have a greater connection with Great Britain and British employment law than with the host country, the employee is likely to continue to benefit from UK statutory employment rights. However, they may gain employment law rights in the host country and, therefore, local advice should be sought. Please note that rights in the host country can override any provisions in the UK employment contract.
- Review the employee’s pension entitlements and any other employment-related benefits under the relevant scheme rules and check if it will be possible for these benefits to continue while the employee is living and working abroad. This is less likely to be an issue where the duration of the arrangement is short.
- Identify if the employee will be creating intellectual property (IP) while working remotely abroad. If they will be, seek both local and UK advice to ensure as far as possible that rights to IP will belong to the employer.
- Identify the status of the employee’s stay for immigration purposes. The longer the employee works abroad, the more difficult it will be to class their stay as a business visit. Consider any restrictions that apply in the host country and seek local immigration advice. UK nationals do not have the same rights to live and work in an EEA country as they did before the end of the Brexit transition period.
- If the employee is not a UK national, a prolonged absence from the UK may affect their immigration status or right to work in the UK. For example, where an employee with pre-settled status breaks their continuity of residence (for example, by being absent from the UK for more than six months in a 12-month period without an important reason), they would not be eligible to apply for settled status.
- Ensure compliance with record-keeping duties under the terms of a UK visa sponsor licence, if applicable.
- Identify whether the employee’s role involves the processing of personal data. If it does, consider which data protection regimes apply and seek local advice where appropriate. Ensure that the employee will be able to comply with any applicable data protection requirements.
- Identify any personal data transfers that will take place and consider if such transfers can take place lawfully.
- If a different approach to employee monitoring will be taken, inform the employee of any changes.
- Consider whether any additional security measures are needed in relation to the storage and use of personal data, as well as confidential information. Record any additional measures in writing. Please note that the ICO has issued guidance on working from home in the context of the COVID-19 pandemic. The ICO expects employers to take reasonable steps to safeguard personal data.
Health and safety and insurance
- Conduct a risk assessment in relation to any employee who is proposing to work remotely abroad. Consider the political situation in the host country and laws that might endanger employees, e.g. relating to rights for LGBT individuals.
- Consider any legal requirements that apply in the host country, as in some countries, requirements will be different/more extensive than employers’ duties under UK law.
- Ensure ongoing compliance with any applicable public health guidance. Employers should keep the COVID-19 position in the host country under review and also consider any guidance that may apply on the employee’s return to the UK.
- Check all relevant insurance policies and consider whether any existing cover is adequate.
This article was written by Joanna Smye, Employment Solicitor at Price Bailey LLP. If you have any questions in relation to any points raised in this article or would like assistance with drafting a remote working agreement or policy, please get in touch with Joanna using the form below.
We always recommend that you seek advice from a suitably qualified adviser before taking any action. The information in this article only serves as a guide, and no responsibility for loss occasioned by any person acting or refraining from action as a result of this material can be accepted by the authors or the firm.
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