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Education briefing - Have you got a minute? Home workers based overseas: A few quick questions

  • United Kingdom
  • Education - Briefings
  • Education - Coronavirus

24-03-2021

Many staff currently work from home due to lockdown restrictions and, even when those restrictions are lifted, institutions are more likely to receive requests from staff to continue working from home for all or part of the time. In response to the current situation, institutions have put in place a range of measures to ensure that, as far as possible, those individuals are able to continue to perform their duties remotely. As long as those arrangements are operating effectively, and staff are able to continue to perform their duties, does it matter where those individuals are located? Specifically, do workers need to be based in the UK and, if so, can institutions enforce this requirement?

These are important questions for all institutions who currently have staff working off-site. They must consider the location of their current workforce and the place of work of any new starters. However, the legal and financial consequences for institutions of staff working from outside the UK can be particularly significant – and those implications are likely to become more pronounced the longer any overseas working arrangements continue. Conversely, any attempt to force existing or prospective workers to relocate to the UK may give rise to legal challenges, including breach of contract claims and claims under the Equality Act 2010. This is an issue that must therefore be managed carefully.

In order to assess their potential exposure in this area, institutions may want to test their knowledge on some of the technical issues that may be engaged in this context.

 

1. What might be the implications of an employee working for your UK institution whilst located outside the UK?

o The employee and the institution may become liable for income tax in that overseas jurisdiction

o The institution may need to set up an entity abroad to make income tax contributions

o The institution may have to set up special payroll arrangements to comply with local tax requirements

o The employee may acquire enforceable employment law rights and protections in the overseas jurisdiction

o There may be legal obligations that operate in the jurisdiction with which the institution must comply as a condition of allowing their employee to work there

o All of the above

 

2. Can you force an employee who is currently residing overseas to return to the UK?

o Yes

o No

o It depends

o Don’t know

 

3. Which of the following factors may be relevant in determining whether an existing employee can be forced to return to the UK?

o The contract of employment says that their workplace is a location in the UK

o They are able to perform all of their duties remotely

o They have been working from outside the UK for over three months

o They are a national of the country from which they are working

o Their overseas work base has triggered an additional income tax liability for the institution

o None of the above

 

4. If you instruct an individual to return to the UK and the individual refuses, could you have grounds for disciplinary action?

o Yes

o No

o It depends

o Don’t know

 

5. If an institution instructed an individual to return to the UK, would the institution be liable to pay for the individual’s associated costs, such as paying for the flight and accommodation costs, if the individual had to quarantine on return?

o Yes

o No

o Don’t know

 

6. If an individual who is based overseas applies for a position with a UK based institution, would they have rights as a job applicant under UK employment law?

o Yes

o No

o It depends

o Don’t know

 

7. If yes, what rights would they enjoy?

o The right to a virtual interview

o The right not to be discriminated against

o The right to receive their travel expenses to attend an interview in the UK

o All of the above

 

8. Could an individual based overseas bring a claim against an institution in a UK employment tribunal?

o Yes

o No

o It depends

o Don’t know

 

9. Could an institution state in a job advert that applicants must be based in the UK?

o Yes

o No

o It depends

o Don’t know

 

10. Does an institution have to have an entity in the country where an individual is residing in order for that individual to work in that country?

o Yes

o No

o Depends

o Don’t know

 

We have a wealth of experience of advising on these and related questions. If you are interested in discussing the answers or any of the surrounding issues with us, please get in touch.