For many, the idea of working remotely from another country, be that permanently or for a short period, is a very tempting one. However, for employers, there are many different factors that need to be taken into account before allowing a UK-based employee to do this.
Some of these factors are purely practical, such as time zone differences and that the days of the working week vary globally. However, some of the factors relate to legal duties which employers will need to consider.
What do I need to consider when an employee makes a request to move abroad?
Depending on the size of your business, it may be that you already have an office in the country where an employee wants to relocate to. If this is the case, you may be able to agree a transfer to that office by varying the employee’s contract.
However, a sizeable proportion of employers will not have offices in other countries and therefore will have to look at the viability of the request.
Factors to take into account
- Does the employee need a visa to be able to work in that country? If they do, how will this be dealt with and who will be responsible for the payment of any fees?
- Do the employment laws of that country confer rights on the employee which are different than the rights they currently have in the UK?
- Will any of the employee’s benefits (e.g. private medical insurance) be effected by them working in a different country?
- Are the pension entitlements different in the country they wish to move to?
- What are the tax implications of the person working in that country? Consideration needs to be given to personal taxes (i.e. income tax in that country) and business taxes such as VAT, corporation tax, etc.
- Does the country have data protection laws that will create an added burden for the business? Will the employee handling personal data in that country be a breach of UK data protection requirements?
- Does the country have additional health and safety regulations above what is required by the UK? How will you satisfactorily comply with UK and local health and safety regulations?
- Will you need to take out an additional insurance policy to cover the employee?
- If you are a regulated business, does the regulator allow those it regulates to work abroad? How will you satisfy any supervisory requirements?
As is clear from the number of factors to consider, this is not a decision an employer can take lightly and it’s important to take time to assess the viability of the request.
What do I need to consider when an employee wishes to work from abroad for a short period (e.g. to bookend a holiday)?
This is likely to be a common request in the future where an employee wants to take their laptop away with them to work for a few days to extend their stay without having to take additional annual leave. On the face of it, this would seem to be a request that has no reason to be denied. However, there are still potential issues which could arise from allowing an employee to do this.
For employees who are non-UK nationals (they are here as sponsored workers) and who are returning to their home country for a holiday, this is likely to be less problematic, provided that they are only working there for a few days. This is because they will have the right to work in that country. However, working for more than a few days could give rise to the obligations referred to in the list above. There are also requirements under UK settlement applications which they may not be able to meet if they spend a certain amount of time outside of the UK.
The bigger issue arises when a non-national of a country works from there, having declared that they are there for a holiday. For example, if a British citizen travels to Spain for their holiday, they are travelling on a visitor-type visa. This visa will have limits on what activities the person can undertake under it. Most visitor visas do not permit working. If the person is working while in that country, they are in breach of that visa.
How do I deal with a request for either short-term or long-term/ permanent working abroad?
The request should be treated as a flexible working request and should follow the same procedure. As part of this, the best option for the company is to seek advice from an adviser in the relevant country, as well as in the UK, to find out what the required obligations are and what they would mean for the company. This information can be used when considering the flexible working request. Remember that as part of the flexible working request outcome, you can include a condition that the change is subject to a trial period. However, it is important to bear in mind that if the request is for a permanent move, it is unlikely that an employee who has moved their life to another country is going to return if the business decides it is not working. It is advised to consider how important they are to the business before making the final decision. Businesses also need to be aware of the risk of the employee bringing an Employment Tribunal claim if their flexible working request is denied but the risk is low if there is a good business reason for the denial.
Hybrid and remote working are here to stay and businesses can be more flexible than ever about how their staff work, but businesses need to make sure that they are complying with their duties fully before agreeing to overseas working with an employee.
This article was written along with Francesca Brown.