Employee’s come Back to the Future – “The appropriate question is, ‘Where are they?'”

Recently a large professional service client told me that their IT department had carried out a test to see if any employee was logging in through servers outside their ‘normal base-office jurisdiction’.  Just shy of 10% of the workforce appeared to be doing so, despite the country being under strict lockdown, with only 1% of employees having actually notified them that they were working ‘offshore’.

The Pandemic has changed many things, and unsuspecting employers have now found themselves thrust into what we call in the tax world ‘Global Mobility’, a service historically reserved for multi-national corporations with employees regularly assigned to work in other countries.  Small local businesses are now having to navigate this previously unchartered territory, where employees who, as a result of ‘work from home’ instructions, are working offshore.

The landscape is not just unchartered for employers.  As a tax adviser, I have recently found myself advising clients that the tax rules for employees working in another jurisdiction as a result of the pandemic are often unclear and, critically, untested.  Countries operate their own domestic tax laws which, despite some attempt at alignment and cooperation with OECD Models and Tax Treaties in place, may apply when an employee is working there, even if it is as a result of the pandemic.  This can result in offshore payroll obligations at the very least, and at worst financial implications for not being compliant, together with complex management of double taxation.  Have I mentioned that social security usually follows a different set of rules again…?  In addition to that, the employee may also be creating a corporate tax presence for their employer in the offshore jurisdiction.  

My legal colleagues find themselves in similar predicaments with many existing employment contracts falling short of scenarios where employees are working from home.  When home is offshore, then offshore employment laws may apply, which could be significantly different to those outlined in the contract or contravenes how the employee normally carries out their duties.  This leaves employers exposed to a range of potential claims by employees and by foreign governments for failure to comply with employment regulation.

Despite the complexities, many companies such as Google and Fujitsu are paving ahead, announcing varying hybrid working policies.  Revolut have recently announced that they will allow employees to work from anywhere in the world for at least two months a year.  That said, other employers are backtracking as soon as they realise the myriad of issues that have to be addressed.  Employers who don’t engage with a hybrid working pattern may, however, find themselves less competitive, especially as many employee surveys indicate a large preference for such arrangements.

People and Change teams are busy trying to help business maximise the opportunity of having a wider workforce population, now that daily commutes and hybrid working models no longer restrict where an employee lives, while managing the risk of having a detached, multi-jurisdictional and unconnected remote workforce.

If you would like to hear more, I will be joined by Gareth Walls, Employment Law Partner @ A&L Goodbody, and Anne Phillipson, Director in People and Change Consulting @ Grant Thornton, on 15 June for a panel discussion and Q&A session on how these issues are impacting employers.  Please email employersolutionsGTNI@ie.gt.com for an invitation.

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