Shilpen Savani participates in the IR Global Employment Working Virtual Series Home Work: The challenges of cross border remote working

The past year has witnessed a huge remote working experiment for many of the world’s businesses and their employees as a result of Covid-19. And, for many, these new working practices have become hugely complex depending on where in the world business owners and employees have suddenly found themselves. Almost overnight, people are in uncertain territory regarding issues involving employment law, tax, social security
and pensions, to name just a few.

FOREWORD BY EDITOR, ANDREW CHILVERS

What are the consequences for a business when an employee works from home on a semi-permanent basis, transferring their residence to another country?

There are complexities here, particularly with Brexit, and although we’ve sadly waved goodbye to the EU our employment laws are unchanged for the moment and we have committed to a level playing field to ensure open and fair competition between the UK and the EU. The three main considerations are:

• the applicable employment law itself. If you’re an English employee who decides to relocate to France or to Belgium, there’s still a likelihood that you’re going to be in a contract governed by English employment law. This is relevant to the question of where any dispute relating to their employment rights will need to resolved.

• then there’s the possibility of a duality coming in, because then they may also be governed by domestic law at the same time. Of course, there’s also GDPR and the need to protect privacy and confidentiality, which every EU lawyer is familiar with.

• then the third and the biggest one, of course, which both Sofie and Stephanie have touched on, is tax and social security. There is a point at which the question of residence leads to a change in how an employee (and their employer) are taxed in the second jurisdiction rather than the UK jurisdiction. I will defer to Menna at this point!

Are there specific rules applicable to remote working in your country? How do they apply to domestic and foreign companies?

That’s fascinating because it’s quite different in the UK. We have very little in the way of regulation for working at home and stip-ulating where people work. The main thing we have here is an overarching obligation, which goes back to the Health and Safety at Work Act 1974. Under our law an employer must look after the welfare of employees and provide a safe working place as far as is reasonably practicable. In terms of what that means, in reality, it’s not too heavily prescribed. What normally is required is a risk assessment of where the employee is going to be working. The rest of it is guidance, but it’s not necessarily obligatory. And, of course, the other important statutory aspect for us is the statutory needs of data protection and maintaining confidentiality which means making sure that the higher risks of breaches at home are dealt with. Whether it’s using less secure mediums like Zoom to conduct business or whether it’s sharing hardware, laptops with family members or accessing personal data for the employees, there are practical issues to deal with. This is a very relevant discussion right now, given how much the workplace has changed with the impact of the Covid-19 pandemic. It is forcing employers, employees and governments to rethink things and is bringing changes fast.

Will companies have to provide new policies for remote working? Will this include providing employees with the necessary equipment and reimbursing costs related to remote work?

That’s similar to here in the UK, where we are already fairly well equipped for remote working. I would summarise what it means, practically speaking, in three categories. The first one is risk management, and that comes down to making sure there’s a proper risk assessment done and that the workstation is properly assessed. The employer must meet its common law duties and health and safety requirements. The second includes insurance and making sure the workplace is insured. This also extends to a need for safeguards to maintain privacy and protect confidential information. Third is to maintain productivity. Whether it’s checking a number of clicks or whether it’s just making sure the manager knows what the employees are doing, how do you maintain targets and measure the delivery of work? How do you maintain effectiveness when your staff are working remotely? The challenges thrown up by Covid-19 including home schooling, for example, have largely been dealt with in a common sense way by employers with employees that are working from home. Employers are aware that people have real life issues to deal with at home right now and mostly I have seen a cooperative and practical approach to the problems posed.

It will be very interesting to see if these changes are here to stay and I think flexible working will become the norm in many industries even after the pandemic is over. I don’t think we need to change very much at all in the law to keep up with this in the UK.