by Alan Devaney, Solicitor in Ronan Daly Jermyn’s employment group.
Such was the nature of the rapid escalation of the Covid-19 pandemic and the implementation of the Government’s restrictions in March 2020, many employers implemented temporary remote working arrangements in an unplanned and urgent manner. This included in some instances facilitating some employees returning to their home countries and continuing to work remotely from there – but as we emerge from this pandemic, employers are coming to terms with work patterns and reviewing working arrangements including those working from abroad.
There is currently no legal entitlement to work remotely, including from another country, either temporarily or permanently. An employee can request to remote work but there is no legal framework around such a request. The Government has committed to legislate for an employee’s right to request to work remotely and the Tánaiste has said the legislation will be published by the end of this year.
In the absence of this legislation, and until the current Public Health advice changes, employers should continue to allow employees to work from home if possible and only return if it is absolutely necessary.
However, we have seen employers are eager to put plans in place and conversations are being had around ‘blended working arrangements’ – which is where employees spend some time in the office and work from home for the rest of the time. The time in the office is usually for specific purposes such as training, planning or team meetings.
Considerations for requests to work from abroad
In terms of handling a request to work remotely from abroad, there are a number of factors employers should take into consideration in addressing a request like this, including:
- Employment law/jurisdiction – The Rome Convention, to which Ireland is a signatory, provides that the parties to a contract can choose the laws which apply to that contract. However, there are some exceptions to this rule. One of the exceptions is that the parties to an employment contract cannot contract out of the mandatory employment laws of the country in which the employee works. Generally speaking, where an employee works remotely in a different country for a relatively short period on the strict and express understanding that it is a very temporary arrangement, it is unlikely that the mandatory employment laws of the country from which the employee is working remotely will be applicable. However, there may be mandatory local employment laws that do apply, depending on the jurisdiction so local legal advice would have to be sought in that regard.
- Employer taxation issues – From the employer’s perspective, employees working remotely outside of Ireland may cause additional administrative headaches from a tax compliance standpoint. Employers will need to be mindful of the tax reporting requirements of both the foreign country and Ireland, particularly where an employee may become resident or non-resident in each country over a period of time. While putting such arrangements in place for one employee may be commercially feasible, this may not be the case where an Irish employer has multiple employees working abroad. In the latter set of circumstances, maintaining a high level of tax compliance across multiple foreign jurisdictions may prove to be a heavy administrative burden. Depending on the circumstances of the employer and employee, Revenue may issue a PAYE Exclusion Order, authorising the employer not to deduct Income Tax and USC from the employee. While Revenue had previously offered a number of concessions in relation to these Orders due to recent restrictions on travel, these ceased on 31 December 2020 and the normal rules continue in effect from that date. Other factors to consider include whether the employee will continue to carry out some duties in Ireland, whether the employee is currently a tax resident in Ireland and the length of time they will spend abroad. In each case, the specific facts and local rules should be examined to assess what foreign tax (and social security) obligations arise in the particular circumstances and whether the other country has relaxed its normal rules in light of Covid-19 travel restrictions.
- Employee taxation issues – In addition, employees working remotely abroad may encounter unanticipated tax liabilities under the laws of their host country. With tax residency rules being specific to each jurisdiction, an employee moving abroad may inadvertently expose themselves to negative tax consequences not only in respect of their employment income, but also potentially on other events, such as capital disposals made or inheritances received. Other benefits provided to an employee by their employer (such as share options, benefits-in-kind or subsistence payments) may also be treated differently for tax purposes in the foreign jurisdiction than in Ireland. Accordingly, prior to any remote working arrangement being implemented, the employee should seek local tax advice in light of their personal circumstances and consider whether they may be entitled to any reliefs under the provisions of a double taxation agreement or otherwise.
- Permanent establishment – Where an Irish entity’s employees perform their employment duties outside of the State, this may create a foreign corporate tax presence and a “permanent establishment” (PE). Where a company has a PE in a foreign jurisdiction, the profits attributable to the foreign PE may be taxed in the other country and the Irish entity may have to comply with the tax reporting obligations of both Ireland and that jurisdiction. In broad terms, a PE may be created where an employee concludes contracts in another jurisdiction and/or if the employer is considered to have a “fixed place of business” in the other jurisdiction. In certain cases, a home office may be a fixed place of business, depending on the specific arrangements and the length of the WFH arrangement. It is therefore very important that employers carefully consider the role occupied by the employee working in a foreign jurisdiction and the working arrangements so as to ensure that allowing an employee to work abroad does not have the effect of unwittingly creating a PE in that country.
- Health and safety – While there is no specific legislation in place specifically outlining an employer’s responsibilities to employees working abroad, the Safety, Health and Welfare at Work Act, 1989 – 2005 defines an employer’s obligations to employees, irrespective of where they are in the world the employees are based, as: “Every employer shall ensure, in so far as is reasonably practicable, the safety, health and welfare at work of [its] employees”. The above duty includes “managing and conducting work activities” in such a way as to ensure every employee’s health and safety. “Work activities” extends beyond the office in those circumstances.
- Data protection/security concerns – The need to facilitate employees using personal devices or work devices in a home or shared setting has naturally created some concern for employers as to how they can maintain the high level of data protection they have implemented in the workplace with respect to their data protection obligations. Working from outside the country would also raise the same concerns. Working outside the EU may also give rise to issues from a GDPR perspective.
- Insurance issues – Not all insurance policies cover employees working from abroad so policies will need to be examined to confirm there are no prohibition or exclusions on having employees working from abroad from an insurance perspective. Health insurance and access to local healthcare services is another consideration and again will depend on the country the employee is working from and any applicable local laws.
- Performance management – Managing performance in person can be difficult at the best of times, not to mention doing so remotely and managers are keenly aware of this over the last year or so. Some companies have engaged monitoring systems to ensure employees continue to be productive and meet their Key Performance Indicates. Any productivity monitoring systems should be managed under the core data protection principles of lawfulness, fairness and transparency and employees should be informed of the monitoring and its use and purpose.
- Time zones/ differences – Working across different time zones may result in colleagues connecting at different times outside of normal working hours to complete their objectives. This should be addressed in any remote working arrangement, particularly in relation to working time and the Workplace Relations Commission’s new Code of Practice on the Right to Disconnect.
- Team collaboration problems – Similarly to working across different time zones, working with colleagues in the absence of face to face meetings can be more difficult while working remotely.
- Managing absences – Requesting employees to be examined by the company doctor or Occupational Health is a critical element of manging absences. Therefore, managing absent employees and following absence management policies in another country – potentially in another language – brings another layer of complexity. That can require a practical approach to be adopted, instead of being able to follow the more prescribed terms of the policy.
Whilst we are at an early stage, there has already been some case law touching on the area of handling requests to work from home.
In An Operations Coordinator v A Facilities Management Service Provider ADJ-00028293, the Workplace Relations Commission upheld a complaint of constructive dismissal in circumstances where an employer failed to facilitate a remote working request from an employee at the outset of the Covid-19 crisis.
The Adjudicator found the Complainant and her colleagues had made sensible suggestions as alternatives to working on site as normal – such as rotating of remote work and on-site work to reduce risk of transmission between them. No effort was made to trial this suggestion.
The decision held that the requirement to attend the workplace without adequate consideration of the elimination of risk amounted to a failure to provide a safe place of work and, as this is a fundamental term, amounted to repudiation of the contract such as to render the Complainant’s resignation a constructive dismissal.
The case highlights the importance of considering all applications for remote working particularly during the COVID-19 pandemic. Of course, there is a difference between a request to work remotely and a request to work remotely from abroad and it is unlikely that a failing to consider a request to work remotely abroad would have the same outcome as this decision.
Essentially, it will be for individual businesses to make a call on whether to facilitate these requests, having considered all of the above factors. Employers considering facilitation of such requests should ensure the following:
- Costs of travelling are dealt with in the remote working arrangement and all policies and procedures are adhered to, in particular regarding working time.
- The normal business hours should be maintained where possible and unless otherwise agreed.
- The address of the employee’s place of work while abroad should be noted and work should only be done there for data security and insurance reasons.
- A health and safety assessment should be carried out and employee duties under the Health and Safety at Work Act 2005 should be observed.
- A right to terminate the arrangement for any reason at any time should be maintained by the company. An approximate duration or end date for the arrangement can be provided on this basis.
- Specific tax advice should be sought by both the employer and employee where remote working may take place abroad.
- Employers should take practical steps to ensure data protection compliance by their employees in a remote working arrangement, including from abroad. Employees should be reminded of their confidentiality obligations particularly where living with family or housemates or a shared work space. They should also be reminded of their obligations to report any personal data breach under the GDPR.
Advice should be sought on facilitating or continuing any arrangements to work remotely from outside the country, as to do so long-term is tricky and potentially a legal minefield.
Some companies that had originally facilitated overseas remote working during the lockdown are beginning to ask their employees to return to Ireland. Tax regimes, permanent residency and the application of jurisdiction and employment laws are reasonable explanations for this, but there are many reasons a business may want to keep their employees in the country. Long-term, many companies are balancing these needs by moving to a blended approach for training, planning and team meetings, which is impractical if employees are working from abroad.
Author would like to thank David Rodgers, solicitor in the Tax Department at Ronan Daly Jermyn, for his contribution to this article.
About the author
Alan Devaney is a solicitor in RDJ’s employment group. He represents employers of all sizes and across all industries, advising on a wide range of employment relation matters including reviewing company policies and procedures, employment related due diligence, redundancies and wrongful and unfair dismissals. Alan has acted in the defence of claims in employment-related proceedings and understands the critical importance of adopting a pragmatic and commercially sensible approach to defending these type of claims.