What are the legal rules if an employee wants to work remotely… overseas?

Employers have a lot to think about if workers are in different time zones. Simon Bellm reports

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The Covid pandemic brought many changes to the way we work. The most obvious has been the increase in remote working. While this will often mean working from home, or from within the UK, what happens when working remotely means working from abroad?

What used to be a rarity has become commonplace, whether it is checking into work while on holiday or a longer-term arrangement. 

There need to be some ground rules in place. Even if an employer is reluctant to develop a full policy on overseas working, any business should think through its approach and make sure it is effectively communicated to staff. A failure to do this is a recipe for inconsistency, disappointment and complaint.

The starting point ought to be that the company’s agreement is required before an employee can work remotely from abroad. Surveys show that a startling number of employees work from abroad without their employer having any knowledge. The potential pitfalls of working from abroad and the steps necessary to safeguard against these are sufficiently serious to justify making sure that the employer knows what is going on.

Look at your contracts of employment and tighten up any vague clauses relating to work location that might allow an employee to suggest they are contractually entitled to work from abroad. For example, a clause allowing the employee to work from home should add a proviso that home must be within the UK.

Consider how any new request will be dealt with. What process must the employee follow? Who will make the decision? What information may be requested? What factors will be taken into account in deciding whether or not to allow it?

While no organisation should be hidebound by its policies, there needs to be some level of consistency and fairness of approach when dealing with such requests, otherwise the potential for disappointment is obvious.

What factors need to be considered when deciding whether to agree to a request? Maybe the first question is whether or not it is a good idea from anyone’s perspective. How will it work operationally? What will be the impact on collaboration with colleagues? 

These and other concerns will need to be balanced against the positives of agreeing to such a request, the most obvious of which is likely to be a desire to maximise the flexibility that is allowed to staff to work in a way that suits them best.

Although the employee may be making the request, is it really a good idea from the employee’s perspective? If the request is to work while away on holiday, what are the implications in terms of eroding holiday and relaxation time? Should the employee be discouraged from checking in or continuing to work while on holiday?

Security issues will be high on an employer’s list of concerns. From a cyber security perspective what risks arise and how will they be managed? The risks of compromise arising from the use of overseas public networks are obvious. How will physical security, especially relating to confidential documentation, be managed?

Businesses need to consider any health and safety issues that may arise. Their obligation to provide a safe working environment does not disappear simply because the employee is working remotely or is overseas. For any longer-term arrangement the working environment needs to be assessed. Do insurance arrangements cover any risks that arise from an employee working abroad?

Do any compliance issues arise? If the employee is required to process data outside of the UK is there a risk that there will be a breach of GDPR? Under GDPR personal data cannot be transferred outside the EU unless adequate protection for the data or other safeguards are in place.

For longer-term arrangements employers need to think through what implications arise in relation to both tax and the legal position of the employee. An employee may acquire tax residency in another country or jurisdiction. This most probably will not be the case if the employee is working outside of the UK for fewer than 183 days in a 12-month period. However, there are other factors that may trigger residency in addition to the amount of time spent overseas.

From an employment law perspective, where an employee works from abroad it is likely that they will benefit from the mandatory local employment protections that exist. This may impact on things such as minimum pay, holiday entitlement and even the position on termination of employment.

Similarly, companies should check out any immigration rules that may apply in relation to the employee working overseas. Visas or work permits may be required.

A clear plan as to how to address all these issues will go a long way towards making things work smoothly. 

Simon Bellm is an employment partner at DMH Stallard