Posted by Juliette Sanderson Neil, Solicitor
(Very) remote working: handling requests to work from abroad
With the third lockdown underway and spring 2021 on the horizon, working from sunnier climes to weather the pandemic is certainly tempting. Some of your staff may even contemplate working from abroad on a longer term or permanent basis.
As an employer, what should you consider before approving a request to work remotely outside the country in which your employee is actually employed? There’s a lot more to this than time zones; our Employment & Business Immigration lawyers explain.
What are the immigration considerations?
One of your initial considerations should be whether your employee can, in fact, legally work from their chosen country. You should check whether the employee holds a passport or visa that allows them to enter and work in that country. If an employee is proposing to continue their UK employment in another country whilst visiting on a ‘tourist’ visa, you should ensure that they are not breaching their visa restrictions. If an employee is found to be working illegally in another country, your company may be banned from operating in that country or have restrictions placed on its activities there. In extreme cases, your company’s executives could also be personally liable for fines or subject to imprisonment.
Similarly, if an employee is working in the UK under a visa and is hoping to achieve settlement, both the employer and the employee need to be mindful that a long absence from working in the UK can impact their eligibility for settled status. One long absence of more than 6 months but less than 12 months is permitted, but only for an important reason (for example, sickness or due to the global pandemic) and that reason must be supported by evidence.
Are there any Brexit considerations?
With the end of the Implementation Period also came the end of free movement. Therefore any EU citizens hoping to continue working and living in the UK should have been resident in the UK by the end of the Implementation Period on 31 December 2020. For those who have already obtained pre-settled status, they should again avoid any prolonged periods abroad if they wish to obtain settled status. The deadline to apply under the EU Settlement Scheme is 30 June 2021.
Will the employee’s employment rights change?
Employees working in the UK benefit from mandatory protections under UK employment law, such as the right not to be unfairly dismissed. If employees are working in another country, they may become subject to the employment law of that country and so acquire protections under that country’s employment law. Even if the other country’s rules are no more favourable, you may face an additional managerial burden in navigating the requirements of two employment law systems. Likewise, UK employers may be required to provide additional benefits to employees under the local law of the country in which they choose to work.
You should also consider whether there are any additional implications if the employee works in a regulated role. There may be restrictions on what can be done outside the UK, or a positive requirement to be in the UK for a sufficient period of time.
You will also need to be alive to other implications relating to:
- employer registration with overseas authorities
- health and safety requirements
- data protection compliance
- social security contributions (within the UK such as employee/employer NICs and social security contributions in the country in which the employee is working)
- income tax issues
- corporate tax position.
What should employers do?
You cannot make the necessary considerations without having knowledge of all your employees’ working arrangements. In the first instance, make it very clear to employees that any significant changes to working arrangements/location require the employer’s pre-approval. Start by putting in place a policy setting out when employees should seek approval to work remotely from abroad and how to go about doing so.
Please note that this blog is broadly based on the “Working remotely outside the UK- considerations for UK employers” practice note published on LexisNexis in January 2021.
Our expert Employment and Business Immigration lawyers are able to advise on dealing with remote working requests:
0330 404 8151 Email us
It pays to employ the right employment solicitor