There may be many thousands of UK workers who are or are contemplating working in their current job from abroad and have the family or friendship connections to pull it off. However, there are legal implications that deserve urgent attention, writes Charlotte Marshall, Claire Nilson and Emma Vennesson.
Working from home is now the norm for many employees and looks set to remain a part of working life for the foreseeable future. Some employees have used this as an opportunity to work from abroad for an extended period, perhaps staying with family on a long-term basis or even relocating to the beach for a better lifestyle.
This may seem like a win-win for the employee, but what are the employment law and immigration implications of such a move and how does it impact the employer?
Although employers may be happy for their employees to work remotely from abroad as long as they get the job done, this can create legal risks that may not have been considered. It is likely that a UK employee working abroad will continue to be subject to national employment laws to some extent; however there is a risk that the employment laws of the host country may also apply, for example with regards to annual leave, health and safety, and tax and social security obligations.
Working in breach of local immigration laws can have serious consequences for individuals, particularly in relation to possible travel bans, but could also have legal, tax, and reputational consequences for their employer”
This will depend on various factors, including the host country’s employment laws and any ratified agreements between the UK and the host country (or applicable EU laws). The position will vary between countries and so the employer should consider seeking local employment law and tax advice in order to fully understand the liabilities.
If an employee is working within an EU member state, EU laws on mandatory rights effectively mean that the employee can benefit from the best of both worlds: where a mandatory law in the employee’s host country offers greater protection to the employee than the system of law chosen by the parties, the more beneficial law will apply. EU laws may also determine which courts have jurisdiction to resolve any disputes that arise.
Employers should also consider the practicalities of employees working remotely from abroad, such as monitoring work output and employee conduct. The terms of any remote-working should be agreed and documented in a written agreement before permission is granted.
The agreement should provide the employer with as much flexibility as possible to terminate the arrangement and require the employee to return to work from the UK as needed. It should also reaffirm to employees that all policies will continue to apply when working abroad, including codes of conduct and confidentiality obligations.
An employee who intends to work in another jurisdiction will need to satisfy that they are able to do so without any form of special permission such as a visa or work permit, or they are citizens from that country.
“Working” is defined differently across jurisdictions. Many countries have their own visa rules and requirements. Immigration permission is typically not required for business visits.
Several business activities are permitted under visitor type visas, but these are typically narrow and rigid, and are unlikely to cover productive work. Depending on the employee’s activities, it may be possible to characterise their stay as a business visit, for example, if their activities are limited to those typically undertaken during business trips (for example, meetings, conferences, and training).
However, restricting an employee’s activities in this way is unlikely to be practical for many employees, especially if they are planning on working remotely from a different jurisdiction for long periods of time.
Generally, the longer an employee works without permission, the more difficult it will be to characterise their stay as a business visitor. In many countries, work is prohibited as a business visitor.
As the law currently stands in Europe, if an employee is a UK and EU citizen, they have the right to live and work in another EU member state. However, this will change for UK citizens from 31 December 2020 when the current Brexit transition period ends. It is therefore worth considering any immigration issues that could arise on the employee’s return to the UK. EU citizens should consider whether to secure settled or pre-settled status in the UK before they travel overseas.
Other, non-EU, citizens should consider whether their absence from the UK may affect their current visa, or their eligibility to apply for other types of status in future where absences are assessed, such as indefinite leave to remain application or naturalisation as a British citizen application.
If an employee is not currently a citizen of a country and they wish to work from that country, they will need to consider what restrictions may be in place in that jurisdiction. For example, if they want to work in Bali but are not an Indonesian citizen and they don’t have the correct permission to work or stay there permanently, they should not undertake any work without having the right visa to do so, even for a limited period and even if they are working remotely for their employer in their home country.
Working in breach of local immigration laws can have serious consequences for individuals, particularly in relation to possible travel bans, but could also have legal, tax, and reputational consequences for their employer. If the employer is found to have breached local immigration laws this could at worst result in civil and criminal liability and could also bring reputational damage to the company and prejudice the immigration status of other employees currently working in that country.
This could even go so far as to prejudice any future assignments and work permit applications. It is therefore always prudent to seek advice on the immigration requirements of the particular jurisdiction where the work will be undertaken. If special permission for a visa or work permit is required, then this is likely to be a legitimate reason to inform the employee that they cannot work from this location and should only work from their UK home base.