Navigating Global Workforces: Employment law, Immigration and Data Protection Considerations for Tech Employers with Remote Workers
In the evolving landscape of the technology sector, remote work has become commonplace. Many technology companies now have employees working from home several days a week as employers are leveraging this shift to tap into global talent pools. Employers within this sector are increasingly interested in engaging with these ‘digital nomads’ and understanding their associated advantages and challenges. There are numerous considerations for employers when an employee is seeking to work remotely overseas which will go beyond the parameters of this blog such as tax, health and safety as well as insurance implications. Therefore, Employers should ensure that they take comprehensive advice prior to agreeing to such arrangements.
Employment and Immigration Considerations
Employers should consider the tax and legal implications should an employee decide to work overseas for a longer period of time. If an employee works outside the UK for fewer than 183 days in a 12-month period, it is unlikely that they will become a resident for tax purposes in another country. However, other factors could affect their residency status. Following the UK’s exit from the EU, there is no automatic right for UK nationals to work in the European Economic Area (EEA). Therefore, it will be necessary to seek specific guidance regarding the country where the employee intends to work on whether they have the right to do so. Both the employee and your business could be liable if the employee violates the laws of the host country while working abroad.
Exercise extra caution if you have employees sponsored under a tier 2 work visa. If a sponsored employee works outside the UK, their sponsorship could be invalidated, barring them from returning to live and work in the UK. Furthermore, you may face repercussions from the Home Office, potentially resulting in the suspension or revocation of your sponsor licence.
From an employment law perspective, if an employee works abroad, they could be covered by local employment protections – even if those rights are more generous than those stipulated in their contract of employment. This could potentially affect matters such as minimum wage, discrimination laws, holiday entitlement and unfair dismissal rights. Additionally, some of the employee’s contractual benefits may also be affected if they decide to work abroad, such as any entitlement to private medical insurance and their pension.
Data Protection Considerations
Within the technology sector, it is common that employees will process sensitive data covered by the UK GDPR and Data Protection Act. As such it is critical that sufficient protection is provided by your systems and processes. Measures to strengthen data security may include: providing computer equipment and a company mobile phone; using data encryptions systems; using VPNs to ensure that the employee uses a protected internet connection rather than working on public Wi-Fi (which may open your organisation up to the risk of security breaches); multi factor authentication and; remote desktop protocols.
According to UK GDPR, personal data cannot be transferred outside the UK without adequate data protection measures or other safeguards. At present, the UK and EU have arrangements in place which recognise the adequacy of the respective data protection frameworks allowing transfer without further safeguards. However, if data is transferred from outside the EU additional data protections will be required and any potential data protection law breaches, both in the UK and in the host country will need to be taken into account.
If the employee will be working in a country outside the EEA, you will need exercise further caution to ensure that data transfers between these countries are UK (and potentially) EU GDPR compliant. You should ensure that you review the rules regarding cross-border data transfers and whether the host country has adequate data protection safeguards.
Tips for Employers
In light of the numerous considerations that employers in the technology sector must take into account including but not limited to employment law implications, immigration and data protection, employers must fully consider each case on its own facts, taking account of the reason for the request and any implications of a prolonged stay overseas.
Depending on how many requests the business expects to receive, it may be appropriate to consider developing a working abroad policy to ensure that these situations are dealt with consistently.
Due to the complexities involved in these cases and the increased risk of liability, employers should seek expert advice before allowing an employee to work overseas. If you have any questions on these topics, please contact one of BTO’s STEM Employment and data protection law experts.
This update contains general information only and does not constitute legal or other professional advice.
Dawn Robertson, Partner & Accredited Specialist in Employment Law: dro@bto.co.uk / 0131 222 3242 / Connect with Dawn on LinkedIn
Kimberley Tochel, Trainee Solicitor: kto@bto.co.uk / 0141 221 8012 / Connect with Kimberley on LinkedIn
