GQ|Littler Team - 30 June 2021
Like trying to replay your favourite childhood board game, returning to the office is going to be different than you remember - and the rules seem to have changed in the meantime. We look at the top four questions that have come across our desk as companies return (in full or in part) to office life.
In general, not much has changed. The health and safety considerations in play during the partial reopening last year are largely still the same.
However, employers should be aware they will likely now have a dual responsibility going forward – ensuring both office and home working environments and H&S compliant if a flexible working model is adapted.
As offices reopen, employers need to ensure their office is a safe place to work. Covid has obviously added a whole new dimension to this once simple consideration. Click here to allow Mark Callaghan to take you through the main concerns and queries that need to be taken into account.
Unfortunately, this topic has the potential to be a moving feast depending on any government guidelines in this area. Therefore, we suggest regularly checking the government webpage here which gives useful, practical guidance on what to do.
If this is too much of an information overload, use our Health and Safety: At a Glance Checklist to get your head around what needs to be done.
As regards to your homeworking population, whether they are now working full-time or part-time from their abode, employers need to ensure this space is also a safe area to work. For our overview of what that means in practice, see Kate Potts’ excellent article here on H&S considerations in a homeworking environment.
Finally, if the last 18 months has shown us anything, it’s that mental health considerations are now high on the list of many home workers. Isolation and homeworking was a toxic mixture for many, with the long term effects still being unclear. For that reason, consider what steps an employer can take to look after the mental wellbeing of staff from our list here.
Although we have seen in the news some employers opting to do this, there are various risks in doing so, including:
For more information on each of these risks, please see our more detailed article on this here.
The severity of the risk to each employer will be fact specific and will depend on their business, the characteristics of their workforce and the potential vulnerability of their customers or other people the workforce mix with. Each employer considering making vaccination mandatory will need to consider whether this is a proportionate and reasonable thing to require of their staff with those factors in mind. For example, the risks above are lower for NHS staff and care-home workers (who as of recently are now required to be Covid-19 vaccinated in their roles), given the high vulnerability of the patients they are mixing with and the increased chance of them coming into contact with the virus at their workplaces (see here for an article we wrote on this topic shortly prior to this becoming policy).
Generally, policies encouraging but not requiring staff to get the vaccine are far lower risk for employers.
The short answer is ‘yes’, but there can be significant risks to do doing so unless you bottom out tax and payroll issues.
First, there is no legal prohibition on employees performing services for a UK company overseas. Lead the Monday morning meeting from Costa del Sol, if you so wish.
However, employees working remotely outside the UK may create expensive tax liabilities for themselves and their employers. It’s important to be aware of these before any long-term decisions are made.
The foreign country in which the employee is working may seek to tax some or all of that employee’s income from the employment. This is based either on the fact that a substantial number of days have been worked in that other country or in some cases on the basis that the employee has become a tax resident there under local law. Further, social security liability may accrue (which is generally assessed separately from income tax). The main concerns for the employer will be whether there is an obligation to operate local payroll withholding and whether local social security rules add significantly to the wage bill. The rules vary widely between countries and, unfortunately, there is no ‘one size fits all’ approach to managing this issue across multiple jurisdictions.
Employers will also need to consider two corporate tax risks. First, an employee working abroad may in some circumstances constitute a permanent establishment of the employer in that other country, exposing part of its profit to corporate taxes there. Second, if a UK company has directors based abroad, there is a risk of the company also acquiring corporate residence in another country.
These considerations can take time (and money!) to resolve, so our general advice is not to permit overseas working until you are comfortable about the risk involved or take the steps to mitigate those risks.
The important thing to remember is that eligible employees have the statutory right to request flexible working – employers do not have an obligation to grant requests.
That said, employers do need to consider and respond reasonably to all flexible working requests and only reject a request where one of the specific statutory reasons applies. Employees can bring legal claims where they feel their flexible working request has not been dealt with in a reasonable manner. Employees could even try to bring discrimination claims if they consider that they are being treated differently to others on the basis of a protected characteristic or because they think their employer has a policy of unreasonably rejecting flexible working requests. With that in mind, we recommend dealing with flexible working requests on a case-by-case basis and considering each on its own individual merits, by reference to the statutory framework.
One way of actively trying to limit the amount of formal flexible working requests is to allow more employees to work flexibly on an informal basis – this approach should alleviate the administrative burden of responding to formal requests, keep permanent contractual changes to a minimum and reduce exposure to legal risk.
If you have any questions about the issues above please contact your usual GQ|Littler lawyer or email firstname.lastname@example.org.