Over There

Beth Leng, Partner in the employment team at SA Law asks if WFH abroad is really that simple?

Over the last two years we have become accustomed to the flexible working model. For office-based businesses, workers have proved that not only can it work, it can work well or, in some cases, even better than the traditional office based model. As a result, a style of working that was once regarded as a luxury, has now become the norm.

Therefore, it isn’t surprising that, as we find ourselves comfortably settled into our new hybrid routines, some of our minds have begun to wander further afield. Opportunities to work abroad for a limited period are now being considered, and indeed offered, by a number of employers. Studies suggest we’re just as (if not more) productive working remotely as we are in the office. If physical proximity to colleagues is not necessary for effective teamwork and success, what is to say that the same model cannot be just as effective over a greater distance?

However, geographical changes do give rise to a number of other issues that employers should consider before committing to more even more remote, remote working arrangements.

Health & Safety

Firstly, employers need to consider how they will fulfil their health and safety duties. Whilst few employers are currently conducting remote work station assessments in person (most are done via Teams or Zoom), the opportunity to make adjustments is far easier when staff are close by. Delivering chairs, monitors, adjustable desks becomes more of a logistical challenge, the further away staff are.

Employers will also need to consider domestic law and health and safety rules in the jurisdictions their employees wish to work. Questions arise such as:

· Will existing insurance policies cover staff working in certain locations?
· Who will bear the responsibility for ensuring appropriate levels of cover are in place?
· Recent events in Europe demonstrate how quickly security challenges can arise. How do employers protect their staff and relocate them quickly if the political, economic or environmental situation changes overnight?
· Who bears the cost of any relocation costs?

Employers will encounter additional obligations and challenges in respect of any sponsored employees who wish to return to their home country to undertake their ‘UK role’. Whilst it is not uncommon – and entirely permissible from a UK-Immigration Law perspective – for Skilled Worker and ICT visa holders to travel back to their country of Nationality and/or residence for both leisure and business purposes (including temporary periods of working from an overseas office and/or at home overseas), employers will need to think carefully before agreeing to any prolonged periods of overseas remote working.

UK Sponsor Licence holders are subject to strict reporting and monitoring obligations in respect of any sponsored workers. Whilst some of these obligations have been relaxed temporarily if the reason for any (ordinarily notifiable) changes to a sponsored employee’s circumstances (including work location) is directly linked to COVID-19, these exemptions will certainly not extend to sponsored individuals who would simply prefer to work remotely in their home country. Employers who sponsor migrant workers will need to consider the following before agreeing to any overseas remote working requests (even if short-term):

– How will the individual’s attendance and competence be monitored if they are overseas (and how will any absences for any reason be notified and properly recorded)?
– Is it actually possible for the individual to undertake the specific role for which they are sponsored (i.e. the role detailed on their Certificate of Sponsorship (CoS)) overseas (from both a technological and practical perspective)?
– If it’s possible to undertake the role from overseas on a long-term basis, how can the business justify/evidence that the UK role, in respect of which the individual is sponsored, remains genuine?
– Will the sponsored individual continue to receive the same salary (consistent with the salary cited on the CoS)?

In addition, any skilled worker visa holders who wish to apply for Indefinite Leave to Remain (ILR) in the UK, will ultimately need to evidence that they do not have excessive absences from the UK during any rolling 12 months within their five years’ continuous residence qualifying period. Days working abroad are counted as absences from the UK and it’s important to monitor continuously absences to ensure that the individual accrues no more than 180 days’ absences (which includes any whole days spent outside of the UK, whether for business or leisure purposes) in a consecutive 12-month period.

Separate tax advice will need to be taken by both the employer and the employee if longer term arrangements are contemplated.

Another key consideration for employers will be the data protection implications of cross-border transfers of data. The rules surrounding international data transfers to outside the UK requires an ‘adequacy decision’ confirming a certain level of safeguarding is achieved by the laws and regulations of that jurisdiction, without which additional safeguarding measures must be put in place in order to transfer data outside of the UK (such as the use of standard contractual clauses or binding corporate rules).

For example, data transfers from the UK to the EU are typically more straightforward as the UK have now been granted an adequacy decision from the EU (post-Brexit), confirming that transfers between the UK and the EU meet the required standards of the EU GDPR (which largely mirrors the retained UK GDPR for the time being). By comparison the previous mechanism to transfer data to the US via the ‘privacy shield’ is now considered invalid so additional safeguards would be required for a UK-US data transfer. Data sharing is a high-risk area and is not something that should be taken lightly so it is important that employers have due regard to the arrangements/rules that are relevant to the particular jurisdiction from which the employee wishes to work before agreeing to any change.

Location, location…

Inevitably, the challenges will differ depending on where employees wish to work. The antiquated model of the CEO spending the summer working from his second home in the South of France with only a PC and a landline, presented few challenges for HR and IT departments seeking to manage the legal, logistical and technical challenges.

As employees venture further afield in their agile working arrangements, they will need to be responsible for conducting a degree of due diligence regarding facilities, wifi and equipment in their host locations. Employers will also need to consider who should bear the cost of any travel to and from such locations. Will employees be required to return on demand?

Employers should also be aware of making uninformed judgments about the infrastructure in the countries and regions in which employees wish to work. There is ample scope for race discrimination complaints related to decision making based on the locations employees wish to travel to.

One of the biggest challenges for employers allowing employees to work abroad, is the potential discord this may sow within the business, when office-based colleagues perceive a disparity in treatment. Any existing (or old grudges) are likely to fester and grow when employees see each other’s backdrop and one is a tropical beach whilst the other is another day of torrential British rain (in August). There is a risk that decision making as to who gets to work where, will lead to a two-tier workforce and culture of them and us.

These problems will only be exacerbated by challenges of working across different time zones and national holidays etc. If office based staff find themselves picking up work for colleagues who, due to time zones, are still sleeping, mutiny could easily follow. Therefore, having a fair and even-handed approach to decision making, is critical.

One approach is to pass all on all the cost of remote working to the employee. However, this is likely to exacerbate the situation, as only those who are senior enough to be able to afford such arrangements will be able to apply.

Linking opportunities for (subsidized) remote working to performance is another option that some employers are considering.

It is important that employers do the right thing for their business and with an eye to their competitors. However, whatever you decide, having a clear policy on conditions for applying, accountability in the host location, the distinction between remote working and holiday (which must be pre-approved in the usual way), risk management and compliance with domestic requirements, will be key to ensure that working abroad is as successful as home working has proved to be.

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