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Dealing with requests from employees to work overseas

19 May 2021 | Cecily Donoghue

With the lockdown restrictions starting to ease, and both businesses and staff considering moving further afield, many businesses are facing requests from employees to work remotely from overseas.

The specific implications of an employee requesting to work overseas will depend on the particular circumstances, including the contractual position and the nature of the employer’s business.

When considering whether or not to grant such a request, employers will need to consider each case on its facts, taking account of the reason for the request and any adverse implications of a prolonged overseas stay. From an employment perspective, there will be a number of issues to consider. These will range from statutory employment rights to immigration, tax and social security, data protection, insurance and health and safety issues.

Factors to consider when an employee requests to work overseas

Initial factors

  • Where the employee’s normal contractual place of work is – we presume in the majority of cases that this is a place of work in the UK.
  • Temporary or permanent moves – it is important to consider the length of the request and whether it is temporary or could become permanent. In most cases, we would suggest considering requests on a temporary basis only until the business can fully understand and assess the implications of the move.
  • Approval – it is important that employees are aware that they need to seek approval in advance (and preferably in writing) from the business and not just an informal Teams message with their line manager before making plans, or travelling abroad to work.
  • Can they work? – do not be tempted to agree to a request if it will be impossible for the employee to carry out their role effectively and lawfully from the country they would like to visit.
  • Wider remote working plans – the specific issue of working abroad falls within the remit of the future of the workplace and where the business would like its staff to work from and how much flexibility they are willing to give in future. Whilst there are a number of positives in embracing flexible and agile working patterns, these do need to be carefully planned and thought through in advance of making such announcements.
  • Consistency – we are seeing a number of clients reporting that they do not know where all their staff are or are surprised to find that some requests have been approved informally by line managers, whereas others have been refused. All such requests should be treated consistently and as fairly as possible in order to avoid complaints including discrimination.
  • Personal circumstances – all the factors relating to the request should be considered. For example, some staff may make a request due to their mental health and inability to see family abroad, whereas some requests may be in order to facilitate summer holiday plans. There isn’t a one size fits all solution, but it is important to have all the information in order to properly consider the request.

Practical points:

Whilst working remotely, how will both the employee and the business deal with:

  • Reporting lines and supervision
  • Communication
  • Attending calls and meetings
  • Impact on the wider team
  • Time zones and availability for work
  • Meeting client requirements

Data protection and confidentiality

If an employee’s role involves processing personal data, this could give rise to data protection issues, especially if the employee is requesting to work from a country outside of the EEA which is not subject to the General Data Protection Regulation and other EU data privacy laws.

Equipment and health and safety?

  • Do they have, or have access to, the appropriate technology to enable them to work?
  • Is any company property insured abroad?  
  • H&S – UK employers have a duty to protect the health, safety and welfare of their employees, which includes providing a safe working environment when they are working from home (including carry out risk assessments etc). If an employee works from home abroad, you should also ensure that it is compliant with any local health and safety requirements.
  • Employees will also need to comply with applicable public health guidance (e.g. quarantine periods) both in the host country and on their return to the UK.

Country specific requirements

Some countries automatically impose employment rights on individuals whilst in the host country, even if short term. Take advice in relation to the host country as they may acquire rights in that country which the business is liable or required to offer / implement.  

Tax and social security

The UK employer should continue to deduct income tax under PAYE as well as employee NICs and pay employer NICs too. However it is important to consider the impact of the employee’s absence on their tax residence position and the possibility of double taxation.

Social security arrangements are complex, particularly in light of Brexit. Specialist UK and local host country advice should be sought.  The general rule is that employee and employer social security obligations arise in the country in which the employee is physically carrying out their duties and whilst there are some exceptions in the EEA, outside of this the position will depend on whether there is a reciprocal agreement in place.

Immigration

  • Identify the status of the employee’s stay. The longer they live and work abroad, the harder it will be to classify their stay as a business visit.
  • Consider any restrictions in the host country and you may need to take local immigration advice.
  • If the employee is not a UK national, then there may be issues on their return to the UK and what impact this may have on their status and right to work in the UK. A prolonged absence may delay their eligibility to apply for British citizenship.

What to do now?

Employers are likely to continue receiving requests from staff to work abroad in future, not just during the COVID pandemic.

Given the current situation, business will want to be flexible when it comes to accommodating requests to work from overseas, but it is vital that they also seek to minimise the risks.

Depending on how many requests the business expects to receive, the company may want to consider developing a working from abroad policy to ensure that these situations are dealt with consistently and fairly.

Consider and work through all the factors outlined above to seek to minimise any surprises or risks.

Agree the terms of any temporary overseas working arrangement and record them in writing in advance. Ideally, these should clarify that:

  1. The employee will be liable for any additional income taxes or employee social security and the employer can make such deductions as are required in this respect. They will also be responsible for any personal tax issues.
  2. The employee is still working solely for the employer and their existing contract of employment;
  3. The employee takes responsibility for ensuring they have the necessary technology and arrangements in place to enable them to work effectively whilst abroad;
  4. The employee accepts that they are working remotely at their own risk;
  5. The employee must comply with all applicable public health guidance both abroad and when returning to the UK.

Specialist employment legal advice

If you have any questions about employee requests to work overseas or any other employment or HR issue, please contact our team of expert employment solicitors. Call 0117 906 9400 or email hello@gl.law

Download a handy quick-view guide to overseas working requests.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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