The pandemic has had an enormous effect on the working lives of many, with a large number of employees working from home for two years. During that time, they have grown vegetables, acquired a dog and got used to picking the kids up from school.
But with many people reassessing their life choices during the pandemic, some have gone further and have relocated their home life far from the office, with some moving not just within the UK, but abroad. As employers have tried to encourage their workforce back to the office, this now presents a practical problem.
Many businesses are finding that although employees can work from home, the collaboration and exchange of ideas that happens when employees are physically together has a massive impact on productivity and business development – and these benefits outweigh the convenience to the employee of working from home. But can an employee insist on relocating abroad for personal and family reasons and still keep their job?
Amending the contract
The employment contract sets out the agreed terms and cannot usually be changed without the agreement of both parties – an employee with a contract specifying working from the office will need the agreement of the employer to work permanently from home.
This is usually done in the form of a flexible working request. Any employee employed for more than 26 weeks can request a change to their working conditions by sending in a letter in the prescribed form requesting flexible wording, whether that be the hours or the place they work. Employers must consider it within three months and the grounds for saying no include a concern that working flexibly will affect quality and performance. There is no statutory right of appeal but most employers offer one.
The difficulty for an employee is that the tribunal cannot order an employer to accept a flexible working request. The best they can do is ask them to reconsider if they feel that the statutory process has not been followed and award up to eight weeks’ pay, capped at the statutory week’s pay which is currently £544, but rises to £571 from 6 April 2022.
If the employer says no, then the employee must come to the office or face being dismissed on notice for failing to obey a lawful instruction.
Working from abroad: some practical issues
If the employer agrees to the request, there are issues about working from abroad which need to be considered and researched according to the proposed country. These include:
- Does the employee need a work permit to carry out work in their country of choice?
- How will they be paid?
- Does their presence in a country impose additional taxation on either the employee or their employer?
- What if they are in different time zones – how will communication with colleagues and clients/customers work?
- What are the local data protection laws in the country and is the employee in breach of them by exporting personal data to the UK?
- Will the employee acquire employment rights in the country in which they are now ‘working’?
- Are there additional health and safety issues to consider?
- Changing the employment contract to ensure key documents can be served by email rather than post – such as notice or invites to a disciplinary hearing.
The balancing act for employers is that there is an acknowledged skills shortage in the UK and so employers will not want to lose good employees if they can help it, but there needs to be a balance between an arrangement which is completely convenient to either party.
Barry Ross is a director and partner at Crossland Employment Solicitors