For many of our clients and for employers generally we know that flexibility around remote working is becoming more and more critical to the talent engagement and retention strategy. Individuals are increasingly looking at more than just compensation, wanting to see hybrid working models, focus on mental wellbeing and options for working remotely, often overseas. We recognise that for our clients a remote working strategy can be challenging to roll out, not least because of the varied compliance issues that form part of such a working arrangement. We frequently advise clients that a key starting point is a comprehensive global mobility policy providing a framework for considering employment law, data protection, immigration and other regulatory/compliance focused matters.
It is not uncommon to speak with organisations that struggle to ‘police’ where their individuals are working and what for periods of time, leaving the organisation potentially exposed to fines and other action in response to immigration non-compliance.
When individuals are seeking to spend time in another country other than their usual place of residence/employment, it is critical that the organisation first considers what permission may be required in order for an employee to do that. Each jurisdiction will have its own set of restrictions and permissions around entry for business visitor purposes. What may seem like a simple extension of doing my job from my laptop but in another country, may be leaving the organisation wide open to sanctions and reputation damage to boot. Pre-entry immigration permission may not always be required for a business visit. The issue often is that it is a grey area as to what constitutes a business visit and what extends into substantive work from the perspective of the immigration authorities in the host jurisdiction. It is also common to find that there is no exhaustive list of permissions and what is acceptable in one country can differ significantly in another.
In most cases an employer will find that what is permitted as a business visitor is not really of use when the individual is actually seeking to carry out their day to day role in another country. Such productive work would be prohibited as a business visitor, subject to very limited exceptions.
In all cases of remote working an employer should consider whether the intention is for the individual to be attending at company premises on a daily basis or whether they will work from their own accommodation, for example where a holiday to another country has extended into a longer trip and the individual intends to pick up work in the usual way. Attendance at company premises is of course suggestive of a regular work arrangement and not something ‘incidental’ to the primary purpose of stay in the jurisdiction. Neither is it suggestive of a business visit.
During the period of remote working there may also be a range of requirements related to recordkeeping, notification to immigration authorities and consideration of factors that may interfere with any immigration status the individual may hold, for example a break in continuity of status through travelling to another jurisdiction for an extended period. A key example here is the impact of the end of the Brexit implementation period and the loss of the automatic right for British citizens to work in the EEA and Switzerland. Employers should be aware that for any substantive work in the EEA or Switzerland British workers require the correct immigration permission in advance. Issues may arise at the border if the individual is not sufficiently prepared. Often this comes down to communication and what to expect when travelling. This is where the internal communication and the global mobility policy play a key part.
Our global immigration team regularly advise clients on all of these aspects and provide clients with solutions focused strategies for successful business ventures in jurisdictions worldwide. Our team of employment lawyers provide expert, joined-up advice on secondment agreements for international moves.
We will be attending the Expat Academy Annual Conference 2023 and look forward to discussing all these issues and more.