Lawyer Monthly Magazine August 2020 Edition

WHEN ‘WORKING FROM HOME’ MEANS WORKING ABROAD required for business visits. 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 (e.g. meetings and training). However, restricting an employee’s activities in this way is unlikely to be practical for many employees and, in general, the longer an employee works without permission, the more difficult it will be to characterise their stay as a business visit. In some countries, work itself is prohibited even as a business visitor. Currently, if the employee is a UK or EEA national, they have the right to live and work in an EEA country (although this position will change for UK nationals from 31 December 2020 when the current Brexit implementation period ends). If an employee is not an EEA national and/ or wishes to work from a non-EEA country, it is important to consider what restrictions may be in place. For example, if employees want to work in Hong Kong but don’t have permission to stay there indefinitely, they should not undertake any work without permission, even for a limited period and even if the employing entity is not a Hong Kong entity. As with tax and social security, some countries have implemented emergency COVID-19 legislation that will affect the normal immigration position, but this is not the case everywhere. Employers may also need to consider any immigration issues that could arise on the employee’s return to the UK. For example, EU nationals should consider whether to secure settled or pre-settled status in the UK before they travel overseas. Other non- British nationals should consider whether their absence from the UK may affect their visa, or their eligibility to apply for other types of status in future where absences are assessed, such as indefinite leave to remain, permanent residence or naturalisation as a British citizen. Employment law and data privacy implications of working abroad temporarily On top of the tax, social security and immigration implications explained above, there are various other employment law and data privacy considerations. Mandatory employment protections may apply If employees live and work abroad, even for short periods, they can become subject to the jurisdiction of that other country and start to benefit from the applicable local mandatory employment protections. These may include minimum rates of pay, paid annual holidays and – perhaps most importantly in the event of a dispute - rights on termination. What protections, if any, an employee acquires will depend on the country in question. Within the EEA, there is also the Posted Workers Directive (PWD) to consider. This applies where an employee is “posted” from one undertaking or establishment to another cross- border within the EEA (and, until 31 December 2020, the UK). Changes to the PWD, which must be implemented by the end of July, mean that employees will be entitled to the samemandatory pay as comparable employees in the host location. The PWD itself was not designed to cover the situation of an employee working from home temporarily in another EEA country, and it would 58 WWW.LAWYER-MONTHLY.COM | AUG 2020