Lawyer Monthly Magazine August 2020 Edition

59 AUG 2020 | WWW.LAWYER-MONTHLY.COM WHEN ‘WORKING FROM HOME’ MEANS WORKING ABROAD not be directly engaged unless a formal secondment to a local group company is opted for or ask the employee to work on a contract for a local client. However, the local implementation of the PWD may nonetheless end up capturing this situation. For example, in Belgium, the local implementation of the PWD requires that all employment, remuneration, working terms and conditions and collective bargaining agreements that have been declared generally binding apply as of day one to any employee working temporarily in Belgium. This is also true of the UK, where employees have certain minimum statutory rights from day one. This can be a complicating factor, particularly if a dispute or termination scenario arises and the employee asserts that they have employment rights in another jurisdiction. Be careful about transferring data If an employee’s role involves processing personal data, this could give rise to data protection issues, especially if the employee is requesting to work from a country outside of the EEA which is not subject to the General Data Protection Regulation and other EU data privacy laws. Local health and safety protections may apply UK employers have a duty to protect the health, safety and welfare of their employees, which includes providing a safe working environment when they are working from home. If an employee works from home abroad, you should also ensure that it is compliant with any local health and safety requirements. For example, in the Netherlands, employers must provide employees with the equipment needed to ensure a safe working environment, which in some cases, might involve making a contribution or purchasing relevant equipment. Employees will also need to comply with applicable public health guidance (e.g. quarantine periods) both in the host country and on their return to the UK. How to minimise the risks Given the current situation, employers will no doubt want to be flexible when it comes to accommodating requests to work from home overseas, and they will also want to minimise the risks. Depending on howmany requests employers expect to receive, it may be worth developing a short policy to ensure that these situations are dealt with consistently and fairly. It is possible that more such requests will be made in future, as employees look to take advantage of increased remote-working opportunities to ask if they can work abroad for a short period on a regular basis. The key practical steps for minimising the risks are as follows: • Only accept requests if the employee’s role can be performed effectively remotely and can be done lawfully from the country in question. • The shorter the period the employee is working abroad, the smaller the risks are likely to be. Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented. • Always take expert local advice on any tax, social security, immigration and employment obligations in the host country, and on any COVID-19 concessions that have been issued. The employee may also need their own advice. • Be aware that the employee’s ability to participate in company benefits such as pensions, private health care, income protection and life assurance may be adversely impacted by a move abroad, and you should address this upfront with them. • Much will depend on the identity of the host country and the nationality of the employee. For the time being, working in the EEA is generally more straightforward but this will change after 31 December 2020 when the Brexit implementation period comes to an end. • Check what data processing the employee will be doing, and that this can be carried out lawfully in line with the business’ usual policies. • Agree the terms of any temporary overseas working arrangement and record them in writing. Ideally, these should clarify that: • The employee will be liable for any additional income taxes or employee social security which may be charged because of their decision to work for a short period in an overseas location (and that the employer is authorised to make additional deductions or seek reimbursements, if necessary, for this purpose). • The employee will be responsible for any personal tax declarations that may need to be made. • The employment contract remains subject to UK law and jurisdiction. • The employee is still working solely for the UK business. • The employee does not have the authority to enter into contracts with local customers while in the host country and should not hold themselves out as having such authority. • The employee takes responsibility for ensuring they have the necessary technology and arrangements in place to enable them to work effectively. • The employee accepts that they are working from home at their own risk and that the employer will not be liable for any loss they suffer due to their request being approved. • The employee must comply with all applicable public health guidance in both in the country to which they travel and in the UK. The authors of this article are Rosie Moore and Colin Leckey from Ius Laboris Member Firm Lewis Silkin UK, with assistance from Ius Laboris Members: Till Hoffmann- Remy at German law firm, Kliemt. de, Marco Sideri at Italian law firm, Toffoletto De Luca Tamajo e Soci, Gisella Alvarado at Spanish law firm, Sagardoy Abogados, Sophie Maes at Belgian law firm, Claeys & Engels, Ilse Baijens at Bronsgeest Deur in the Netherlands, Catherine Hayes at Lewis Silkin Ireland, Catherine Leung and Katy Lee at Lewis Silkin Hong Kong. Rosie Moore & Colin Leckey Ius Laboris Member Firm Lewis Silkin UK