Remote working: key considerations when employees are working from abroad30 September 2021
As the Covid-19 pandemic has now lasted over 18 months and is set to affect us for longer still, remote working has become the norm for many - to the point that some workers would rather work remotely on a permanent basis.
At first, this seems advantageous to both employees and employers: no commuting saves both time and money, and businesses can make savings on expensive office space. A study by US group Global Workplace Analytics suggested that companies could be saving up to $11,000 per part-time employee working remotely, a significant cut to costs. An additional perk often cited is the freedom and flexibility that comes with a remote working model. Employees can choose to bookend their holidays with a few days of working remotely from their holiday destination, spend the summer months in their holiday homes abroad, or simply return to their home countries to work on a temporary or permanent basis.
However, working remotely post-pandemic is not without its complications – can employers truly adopt a “work from anywhere” model?
Working from anywhere?
Although at the start of the pandemic and in the midst of lockdowns, employers had to make decisions about remote working with utmost urgency and (for the most part) little pre-existing structures or processes in place, that is no longer the case. It is highly recommended for employers to put in place remote working policies to enable them to follow a clear process and minimise their legal risk when implementing remote working. Whilst some companies have adopted a broad brush “work from anywhere” approach, that is in practice unwise as businesses will need to consider the legal, regulatory, immigration and tax implications before agreeing to any request. On the other end of the spectrum, some companies have implemented a blanket ban on working from another jurisdiction, which is moving away from the current trend and may not be looked upon favourably by employees, which could in turn affect employee retention.
The simplicity of having one straightforward rule (and therefore not spending time and resources on implementing case by case remote working) may seem tempting, but in reality most remote working policies and processes should give businesses the opportunity to assess the working remotely requests on a case by case basis.
Remote working policies
The key starting point of any remote working policy should be to make employees aware that they must submit a request for remote working. Well drafted policies will also address the following points:
• Data protection and confidentiality: what requirements employees will have to fulfil to ensure no personal data or confidential information is compromised (for instance, a ban on using public wi-fi which may not be secure).
• Working time: whether the employee is required to follow the office hours of his usual place of work, regardless of time difference – and/or how working time will be measured.
• Health & Safety: how the business will make sure that the employee’s setup in remote working complies with health & safety obligations.
• Equipment: whether equipment will be provided to the employee or whether they are expected to use their own equipment, who will arrange insurance and check that the insurance will be valid overseas.
Considerations for working from abroad
In considering whether to grant the request, employers should have regard to the following factors:
• Legal implications: will the employee benefit from the employment law rights in the local jurisdiction? What are the legal risks if the employer terminates the employment relationship whilst they are in another jurisdiction? Could the employee bring foreign proceedings?
• Tax implications: does the employer need to consider whether social security or other taxes are payable? Will the employee’s presence in another jurisdiction create a potential tax liability for the business?
• Immigration implications: does the employee have the right to work from this jurisdiction, and if so to what extent? What are the consequences for the employee and the employer if there is a breach of immigration rules? Failure to comply to immigration rules could see an individual deported which would have severe consequences on their employment and future travel whether for work or for leisure.
• Any other considerations: for instance, is there a requirement to declare the employee’s presence and the fact they will be working in this jurisdiction prior to them travelling?
To sum up, although remote working has become the norm for many with working from home rising by 140% since 2005, particularly since the initial Coronavirus pandemic outbreak, employers are not legally required to continue making provisions for employees to continue working in this way. Nevertheless, there is a growing trend towards remote working in general.
Our comparative table, covering the USA and the main European jurisdictions will give a further insight as to the key considerations that businesses should consider when an employee requests to work remotely.
For advice and assistance with devising a remote working policy in your jurisdiction or any specific request from an employee to work from abroad, please contact the WLN member firm in your jurisdiction.
Our Employment Law Focus Group:
Emmanuelle Ries (Chair)
Amie Carmack, Axel Weber, Martin Pech, Johannes Paul, Federica Getilli, Gabriele Mirizio, Carlo Gurioli, Andrea Krásná, Frouke Vlaskamp, Michael Mejia, Marguerite Perin, Edzard Clifton-Dey, Britney Weaver
For further information, please contact:
Emmanuelle Ries, Partner
ebl miller rosenflack, London
t: +44 20 7553 9938
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