Coronavirus: Employer’s resource centre — live guidance available here

Rise of the COVID Nomad

BY Jenny Brunton
Employment Law & HR

Working from home has been the default for many employees over the last eight months. Whilst most have adapted to working from kitchen tables and bedroom desks, some have been thinking more creatively about where they can carry out their work. An opportunity to work from a different country or to spend some time with family back home – what are the employment law implications of employees working abroad?

Employment Rights

Employees of a UK employer are likely to be covered by UK employment rights, even if they are working from a different country. If an employee works temporarily abroad, they will arguably have greater connection with UK employment law than with the jurisdiction in which they are working. However, an employee working temporarily overseas may also benefit from mandatory local employment protections, including rights in relation to paid leave or rights on termination. Employers should explore whether mandatory overseas protections apply on a case by case basis.

Tax and Social Security

There may also be tax implications for the employee working abroad. If an employee is working outside the UK for less than 183 days, this should not affect their tax residency. The UK employer should continue to deduct income tax and NICs under the PAYE system as usual. However, the employee may incur additional income tax or social security liability in the host country, depending where they are based and how long they stay there.  Employers are encouraged to take specialist tax advice and to consult HMRC before determining the employee’s tax implications.

Data Protection

Where an employee works abroad, the employee’s personal data will still be covered by the UK data protection legislation and this should not generally be an issue for the employer. However, the employer should consider whether the employee has access to any personal data about others (customers, colleagues, suppliers). If the employee is based outside the EEA then the employer should consider whether this triggers any overseas data transfer requirements. Employers should also consider whether any additional security is required for personal data with the employee.

Risk Assessment

Under the Health and Safety at Work Act 1974 employers are under a duty to do all that is “reasonably practicable” to protect health, safety, and welfare of their employees. These duties extend to those working from home regardless of location. There may also be local health and safety requirements that employers are obliged to meet.

Immigration status

For employees who are not UK nationals, a prolonged absence from the UK may affect their immigration status or right to work in the UK.

What to do if an employee requests to work abroad?

If an employee requests to work abroad for a significant period, we suggest employers carry out due diligence on the points above and consider documenting the working the arrangement. The document should confirm the day to day details of the new arrangements, putting a clear timeframe in place and explaining the circumstances in which the arrangement will be terminated.

If you have any questions regarding employees working abroad, please contact your Employment Solicitor.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division