The mandatory requirement to work from home (when you are able to do so) has demonstrated that infrastructure, systems and equipment can be provided for remote access; therefore, could it be a fair challenge by an employee that the location of work is in fact now irrelevant? What would the employer make of the budding jet-setting worker and would they be supportive of their plans?
Employers are already seeing a rise in requests to relocate and work from another country, which raises immediate practical questions about the time-zone, professional working conditions, effective performance management and travel costs (if deemed essential). More serious challenges may include exercising the same level duty of care towards the employee from a health, safety and security perspective, regardless of the expectations of the foreign country. The more adventurous the travelling employee, the more technical and complicated the legal scenarios, depending on the jurisdiction; movement between countries adds complexity layers as the employer grapples with questions of personal/corporate tax, health and safety, immigration and employment law.
It is crucial to fully understand the local immigration laws and what defines “working” or a business trip within each jurisdiction and whether visas are necessary, or not. Contravention of local immigration laws may have serious civil and criminal repercussions for the individual; therefore, complicated visa or permit requirements may be enough for an employer to reasonably refuse a request to be based abroad.
Overseas stays in excess of 183 days may also affect tax residency status which is likely to require further expert advice. Data security is also a significant concern. An employee moves further away, and cross-border data transfer rules may be triggered based on the adequacy of protection of the host country which may lead to exposing limitations in the Data Protection Policy. This naturally leads to necessary consideration of insurance policies being under subscribed or even invalidated.
Employees should seek permission before embarking on truly remote working, so the legal and practical issues can be assessed properly by the employer. It is also unlikely that current company policies and procedures have been updated sufficiently to tackle this relatively new development in employment contracts in a fair and consistent way; blanket refusals may be tempting, but this is an emotive topic with some employees potentially demonstrating compelling arguments to trial the arrangement. A carefully planned strategy pre-empting requests and the framework for decision making could prevent later grievances or indirect discrimination challenges.
Have you received a request for an employee to work remotely from abroad and are unsure how to handle it? Are you open to exploring the concept with your team? Is it time to update your policies and procedures to reflect this new development?
All scenarios are unique on the facts and The People Department are here to help, so please call 0161 527 0001 in the first instance to discuss.