By Emma Grossmith, Managing Associate at Lewis Silkin, Belfast
The world of work has never been more fluid. It’s easy to out-source projects to a consultant on the other side of the world, or let a valued colleague work from home, whether that be in Northern Ireland, the Republic of Ireland, or even further afield.
Tech employers in Northern Ireland are competing in a global market, for global talent and in a competitive environment, many workers see remote working as more of an expectation than a perk:
But beware, there are some serious legal issues you need to think about if you’re hiring, or thinking about hiring, a remote worker or engaging in remote-working for current staff.
• Although from a practical perspective, workers may be able to ‘work from anywhere’, their physical place of work and residence will have critical tax, social security, immigration and employment law consequences. As the old saying goes, “ignorance of the law will be no defence!"
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• It’s increasingly common to see remote workers bringing complaints in multiple jurisdictions or just ‘cherry picking’ the jurisdiction which gives them the best rights. If you’re letting people work from their home - or from anywhere else - then you need to work out what legal rights and obligations, social security and tax rules will apply to them and their work.
• You should also address potential risks of creating a permanent establishment, which can have serious tax consequences, leading to corporate tax responsibilities in jurisdictions where you may only have one remote worker.
• Before you hire anyone, spend some time thinking about what their real employment status is likely to be, and put in place the right documents. ‘Self-employed’ contractors, ‘workers’ and ‘employees’ are actually different categories of workers in law and have different employment and tax rights, so it is vital you understand these differences from the outset. Tribunals and tax authorities can (and do) look behind the label given to an arrangement to see if it reflects reality.
‘Freelancers’ who may have been happy to invoice for years of consultancy work can quickly change their tune and bring employment claims if their contract is terminated. Likewise, HMRC takes a close interest in arrangements which might be called a consultancy, but which look a lot more like employment (perhaps, for example, because the ‘freelancer’ is working five days a week for the same client). It’s not always easy to distinguish between employees, workers or freelancers in a remote-working world, and although HMRC has a handy online ‘status checker’ which can be a useful starting point this is a complicated area and if you are not sure, take advice.
• If any people working for you might be creating new ideas or inventions in the course of their duties, you will want to make sure you own any intellectual property (IP) they create. This isn’t usually a problem if the worker is your employee with a well-worded employment contract, but if you’re using a contractor then, unless you have clearly agreed something else in writing, you may not own that IP. If this could be important (and it often will be), then you need to get something agreed in writing before the work starts.
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• Make sure everyone is complying with data protection laws. Employees, workers or consultants are almost always going to be processing personal data from their place of work and perhaps via their home or ‘phone WiFi. That data must be processed, stored and destroyed appropriately. If anyone is working or sending data outside the UK, you need to check whether those working practices are legally compliant not only under the laws in the UK, but potentially also in other jurisdictions. You must have up to date protection policies and privacy notices which reflect real working practices.
• From a management perspective, you may want to monitor remote staff (perhaps by monitoring emails, keystrokes, internet use or by tracking their vehicles). Monitoring is by its nature, intrusive, so you need to consider whether you have a lawful basis for any monitoring you want to carry out. If the monitoring might end up capturing any special category data (such as any criminal or medical information) you will also need to be able to satisfy one of the additional conditions specified in law.
The Information Commissioner’s Office (ICO) has made it clear that an organisation’s business interests must never be prioritised over the privacy of workers and that if an employer is carrying out monitoring, a data protection impact assessment (DPIA) should be carried out even if the monitoring is not necessarily high risk. Any decision not to do a DPIA should be documented.
• Remote working also creates challenges in terms of safeguarding confidential information. Many remote workers spend time in coffee shops or shared workspaces which present unique data privacy and security risks from unsecured Wi-Fi networks, or from visual hackers who can see and capture sensitive information on screens.
Businesses need to have clear policies in place to mitigate these risks by specifying safeguards to mitigate the security threats arising from remote working. Training and awareness programmes should also address remote work risks and educate workers on steps they can take to protect data (both personal and confidential). For many remote workers, working in a completely private space isn’t an option. For these risks, screen privacy filters etc. provide a simple method for protecting data privacy.
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• Finally, you need to make sure all your workers have a healthy and safe working environment and that you have the right insurances in place. Health and safety requirements will differ, depending how and where people are working, but you do need to risk-assess the working environment for remote workers.
This includes considering the risks from stress, poor mental health, lone-working, and their physical environment (including any issues they might experience at home which might make home-working riskier for them). It can be a lot harder to make sure staff are sticking to healthy working arrangements when they aren’t in the office, but it’s still your job to check workers aren’t working in excess of the maximum weekly working time (unless they have agreed to), and that they are taking breaks and holidays as they should. Even if someone isn’t your worker or employee, you may still owe them a duty of care.
It really pays to get things off on the right foot when taking on remote workers. Brainstorming the wider practical aspects of the arrangement, and taking proper advice at the start, will save you time and money later. While remote workers may be out of sight, they shouldn’t be out of mind.
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