Finding out that an employee has secretly been working from another country isn’t a new problem, but it has become increasingly likely in the pandemic with so many are working from ‘home’. Juliet Carp offers some practical tips for tackling this and highlights the legal challenges it can present.
Aisling is an IT consultant. She works for a UK-based firm but has always worked remotely, frequently travelling to clients’ offices from her London flat to deliver training. When the Covid-19 lockdown struck, she was visiting family in Dublin and decided to stay put. Seven months later, Aisling is still happily in Dublin, working remotely as always.
She formally agreed to work from home at the start of lockdown but her employer never asked for detail and they communicate online.
From a client-delivery perspective things are working well, and her employer has not even noticed that Aisling is no longer in the UK.
There is nothing really new here. The concept of the “stealth expat” has been around since people first had the ability to work remotely.
Employees who work remotely do not always tell their employers where they are. This might be because they prefer not to prompt objections or because they do not appreciate why working from another jurisdiction might be a concern for their employer.
In the UK and EU every employee must be given a document confirming their normal place of work. If the normal place of work changes that must also be confirmed in writing by the employer.
However, mobile and home workers are often given employment contracts that are not very clear about where “home” could be, or about the need to promptly inform their employer of a change of address or to assist with compliance. In the rush to send people home at the start of lockdown many employers, quite understandably, failed to confirm the detail clearly in writing.
So, does it matter if the employee is somewhere else? Yes, it does.
For example, it is hard to see how an employer can fulfil its health and safety responsibilities without knowing where work is being done. Add in relocation to a new jurisdiction and a whole host of additional challenges arises: immigration rules, employment law, payroll tax, corporation tax, social security, medical cover, insurance, IT licensing, employee registration and other compliance concerns. Compliance may not be insurmountable, but it is often expensive to implement and rarely ‘worth it’ when there is no good commercial motivation for relocation overseas.
Spotting the signs
The simplest way to know where an employee is living and working is of course to ask them directly, but there are other things that may give clues as to a person’s whereabouts. Many of the traditional ways in which problems were identified – such as the employee suddenly using an overseas phone number, expense claims, travel bookings, changes in availability for meetings and use of overseas office space – are not so relevant now as employees are more likely to just be at home.
More formal tracking via mobile phones is sometimes adopted, with consent, for internationally-mobile staff, but this requires careful review of and compliance with local privacy laws, particularly in the EU. This can be expensive to implement where possible at all.
The best tool remains education. Explaining to employees, and their supervisors, why remaining in the home country matters is not only likely to reduce inadvertent problems from employees who want to be compliant, but will make any necessary repatriation easier to implement without triggering employment claims.
Naturally, explaining in a number of different ways – informally, formally, orally, and in writing – helps with understanding, but of crucial importance is the need to communicate the potential personal impact on the employee.
Compliance may not be insurmountable, but it is often expensive to implement and rarely ‘worth it’ when there is no good commercial motivation for relocation overseas”
Additional practical options include:
- reviewing paperwork for new joiners. Are place of work, mobility and home working terms clear?
- reviewing home working and flexible working policies to ensure they deal with international as well as domestic home working
- updating ‘frequently answered questions’ and policy documents relating to Covid-enforced home working
- updating template consent letters relating to home working to cover the appropriate level of detail. You should anticipate that things that may change and that additional consent may be required
- training relevant managers and HR so they appreciate the potential compliance risk, interaction of discrimination laws, the need for consultation, who they should alert if there is an issue
- reviewing current home working and permanent home locations, which are not necessarily the same thing
- regularly confirming of the accuracy of specific HR data, perhaps coupled with express acknowledgement that certain activities – such as any sort of work abroad – requires prior written consent or is prohibited
- implementing detailed, ‘joined up’ business visitor and assignment policies to ensure that overseas business trips, commuting and other temporary working arrangements overseas have been properly considered by internal and external specialists, from the perspective of health and safety, tax, immigration, and everyone is clear about what they need to do to be compliant.
All of these steps would have been prudent even without the challenges that Covid-19 has brought, and many large international businesses already have policies in place. The key difference now is the scale of the stealth expat problem, so action is vital.