The Legal Implications of Remote Working Cross-Border
I wrote my law school dissertation on a very niche area of law which interests me a lot, and perhaps interests you too.
12 months ago now — Jesus— I was just wrapping up my dissertation for my Senior Status LLB. I’m really pleased to say the submission went well, and I’m now a proud holder of a First Class Honours Bachelor of Laws. Go me.
Over the last year I have promised a few folks access to a summary once I received my grade. So, here we are folks! It’s a bit shorter (but still long, sorry), hopefully a bit more readable, and a bit of my life I really enjoyed.
The conclusions may be interesting to you if you are: a VP People, a remote-first CEO/Founder/COO, an internal Legal Counsel, or even just for an employment solicitor in the UK who is interested in this field.
Introduction
In only a few months, the coronavirus (‘COVID’) pandemic had devastating economic, social, and health impacts worldwide. Today, millions of lives have been lost, and the end of the crisis seems it may finally be in sight. The pandemic has also accelerated an already existent movement of remote working. This study outlines the legal climate faced by remote workers in the United Kingdom (UK) either within their country of residence or cross-border in the European Union (EU). Then, critically evaluating the current legislation affecting remote workers and using research conducted with business leaders in the space, I will discuss whether this area of law requires reform and how it may be achieved.
‘Remote working’ is a broad term. It can be used as a catch-all for home-working within the employee’s country of residence and employment, cross-border working where an employee may work for a UK company but work and live within the EU, or nomadic-working where an employee may not have any single, fixed residence. I focus on those who work in one mostly-fixed location, such as at home or in flexi-working spaces, but which may work cross-border.
I won’t be talking about immigration law or individual’s taxes: This study and article does not touch on the complexity of immigration law for cross-border workers despite being a challenging and changing area of law, with several EU member states launching digital nomad visas. This research presumed all employees had the right to work in the country of employment and residence. Furthermore, I do not detail the tax liabilities of remote workers, as taxation is determined by an individual’s particulars, such as salary and tax treaties. Rather, this study groups all taxation concerns into one general bucket of ‘contractual agreement’ which covers a worker’s general terms of agreement, including (to some degree) how taxation is managed between themselves and their employer.
Due to the nature of cross-border remote working and current legislative limitations, the ‘employee’ may also not be an employee as defined by the courts of England and Wales; this research, therefore, uses the word ‘employee’ to refer to any individual which a company considers a member of their permanent organisational design. For this reason, for the entirety of this article, I largely adopt the definition of a “Limb A worker” in section 230(3) of the Employment Rights Act (ERA) 1996, which includes anyone employed under a contract of employment, and then I automatically extend that definition to individuals who are self-employed.
Remote working is not a new phenomenon but the recent acceleration in the volume of employees home working has caused the legal implications on employees and employers to move into the professional-consciousness of human resources professionals, business leaders, and employment lawyers. The sudden movement to remote and home-working has highlighted the legal implications faced by remote workers in the UK and EU, either within their home country of residence or cross-border when compared with traditional ‘on location’ employment. (Here, ‘legal implications’ meaning the often negative results and consequences.) Little exists in the way of reliable primary and secondary sources in this space, which resulted in a programme of human research being conducted in order to ascertain the severity and consequences of the current legal implications as it stands. In the section titled ‘Reform’ the article will explore the research outcomes in more detail. Ultimately, however, these existing legal implications have highlighted the weaknesses of current UK and EU substantive law regarding remote working, with much of it either conflicting with, confusing, or limiting a business’s capacity to adapt to remote work.
Remote working does not look to be disappearing after the COVID pandemic recedes, and many employees and businesses are publicly committing to greater geographic flexibility for their workforce. This commitment towards greater remote working calls for legislative change in the areas where laws negatively impact employees. This article explores those legal implications upon employees and also provides some discussion around potential law reform in the UK and EU to better meet the needs of remote working.
Context
As the COVID pandemic evolved, so have the measures governments have taken to address it. Reducing face-to-face contact emerged early in 2020 as a necessary action to mitigate the spread of the virus. According to the International Labour Organization, around 68 percent of the world’s total workforce entered 2021 living in countries with recommended or required workplace closures. This has presented a new professional atmosphere where employers have had to adapt and make contingency plans to respond to new measures as they arise. For this reason, many companies in the knowledge economy (such as technology and consulting) are using remote working as a temporary or alternative working arrangement during the pandemic. March 2020 was the month that reflected the highest “boom” in workers moving to remote working arrangements; immediately prior to March remote workers accounted for only 5.7 percent of the working population. In April 2020, The UK Office of National Statistics reported that 46.6 percent of all people in employment were doing some work at home, and over 60 percent of workers in management and professional occupations were working remotely.
Generally speaking, temporary WFH arrangements do not require any permanent adjustment to the terms and conditions of employment, and it is not clear just how many of these new remote worker’s arrangements are temporary or have no formal arrangements. Nine out of ten (88.2 percent) of employees who worked at home during the lockdown would like to continue working at home in some capacity, with around one in two employees (47.3 percent) wanting to work at home often or all of the time. Many companies, such as Twitter, Stripe, Spotify, and Facebook have made public commitments to a ‘remote friendly’ or ‘hybrid’ working model. Additionally, proponents of remote working advocate for it’s potential to contribute to a greener and more sustainable future, and for this reason there is some urgency to the review of current legislation which may inhibit progress towards more remote working, as it’s adoption could have significant societal, commercial, and environmental implications and benefits. This demonstrates that the current trends towards remote working will be an ongoing consideration for employees and employers, and brings the legislative challenges and restrictions from a fringe-issue and into the professional-consciousness.
Relevant Legislation
Many countries around the world have begun legislating aspects of remote working arrangements, working conditions, the rights and responsibilities of employers and workers. For example, in the Netherlands, the Working Conditions Decree concerns paid work performed in the worker’s living quarters or another place chosen by the worker outside of the employer’s premises. Spain and Poland have released similar legal changes in order to meet the demands of remote working. At the time of publishing, the body of UK and retained EU legislation, however, remains unchanged in the area of remote working. The absence of new legislation regarding remote working does not mean that there is no legislation which impacts remote workers; there is a body of EU and retained EU law, as well as UK specific legislation, which presents legal implications to remote workers.
For those employees in the UK, examples include legislation enacted by Westminster Parliament on its own initiative (i.e. without instruction from an EU directive, also called ‘Sovereign Legislation’) such as ‘IR35’, and the Health and Safety at Work etc Act (HSW) 1974. Additional supplementary health and safety legislation, such as the Health and Safety (Display Screen Equipment) Regulations 1992, also sets out requirements relevant for remote work. These regulations, and others like them, impact remote employees despite not mentioning remote employees specifically, such as mandating all work environments to be ‘safe’.
In terms of retained EU law, The Working Time Directive (WTD) and the General Data Privacy Regulations (GDPR) present legal implications to remote employees which are not equally present for employees who work ‘on location.’
The final relevant category for legislation is the Human Rights Act (HRA) 1998, which brought the European Convention of Human Rights into effect in the UK. The primary article which affects home working is Article 8, which protects an individual’s right to respect a private and family life.
Part 1: Legal Implications for “Country of Residence” Remote Working
Data-privacy and GDPR
In the UK, employees are subject to an implied duty of confidentiality in the workplace regarding clients and other personal data. The risk of this being breached is compounded when the employee works remotely. Remote workers are subject to risks associated with data and client confidentiality when working outside of the workplace, but without the protections of locked offices, private meeting rooms, and encrypted internet connections. GDPR requires all equipment containing data, and the information itself, must be kept securely and that the controller should take all necessary steps to ensure that private and confidential material is kept secure at all times. This is especially important if the employee plans on working in a public space with public internet, such as a café or library. Therefore, remote workers are subject to higher risk of breaching GDPR, and may require specialised training or guidance.
For an employee to be GDPR compliant, the employee may incur additional costs (for example, encrypted internet). A UK remote worker who is an employee may be entitled to claim a deduction against taxable income for certain household expenses and travel costs. For a household expense to be tax-deductible, the expense must be incurred wholly, exclusively and necessarily in the performance of the duties of employment. The European Social Partners issued a Voluntary framework agreement on telework in 2002, which suggests the employer should cover all direct costs, particularly those related to communications. However, this agreement is old and non-binding in the UK.
Health and safety
The basis of health and safety law in the UK is within the HSW, as well as in common law. HSW sets out the general duties which employers owe towards employees, as well as those which employees have to themselves and towards one another. These duties are qualified in HSW by the principle of ‘so far as is reasonably practicable’, which means an employer does not have to take measures to avoid or reduce risks if they are technically impossible or if the time or money required would be grossly disproportionate. The Management of Health and Safety at Work Regulations 1999 (the Management Regulations) and Health and Safety (Display Screen Equipment) Regulations 1992 makes more explicit what employers are required to do to manage health and safety under the HSW, and for employees who use video display equipment. Like the HSW, they apply to every work activity and, although they do not explicitly mention remote workers, the regulations apply to them.
Health and safety regulations are reasonably pragmatic regarding proportionality. Employers must conduct a risk assessment of their employees’ work activities, including any work from home where an ‘in office’ employee may be entitled to a full ergonomic workstation and in-person ergonomic assessments. However, compared to office workers, a remote worker may not be entitled to the same level of attention or support under the law as a risk assessment must only be “suitable and sufficient”. This means if an employer is not able to carry out a full risk assessment due to remote working, they should provide their employees with information on working safely, and an employee may have to do a self-assessment rather than have one provided by an expert.
Employees’ are required to take reasonable responsibility for their own health and safety at work. Wherein an office environment a colleague or employer may be more able to assess any risks, a remote working arrangement is likely to put more responsibility on an employee to alert their employer to any physical or mental health and safety risks as well as any working arrangements that need to change, for example because of stress or chronic pain.
Right to privacy
Remote working has prompted questions on how to monitor employee’s contributions without impacting employee’s rights under the HRA and other regulations, with many platforms emerging to monitor time spent working, but also with potential to record screen and webcam images. Gartner reported a 10 percent rise in monitoring of home workers in the three months following April 2020. The UK’s Information Commissioner’s Office claims it will usually be intrusive to monitor workers, and employers must tell employees if they are being monitored and, more importantly, why.
In 2017 the European Court of Human Rights (ECHR) decided that monitoring an employee’s emails was not a breach of the right to respect for private life and correspondence. The Court held that: it is not unreasonable for an employer to verify that the employees are completing their professional tasks during working hours. There are clear rights of privacy in the workplace, indeed the ECHR heard the case on that basis, it is not clear how to balance ‘reasonable expectation of privacy’ with remote working and increasingly invasive monitoring technology, which legal scholars liken to case law on workplace imprisonment. There are limitations placed on employers’ powers to monitor private communications in the UK, which employees may find more effective than attempting to rely directly on Article 8. Hurdles surrounding the HRA are discussed in more detail in the section titled ‘Reform’.
Working time
Much discussion surrounds the complexities of regulating working time while working from home. Despite a volatile history implementing the directive, the WTR award UK employees a right to a maximum working time of 48 hours per week working time and rest breaks from work. Despite these regulations, employees in the UK already work among the longest hours compared with their European counterparts, and many argue a further ‘right to disconnect’ would empower workers (and particularly remote workers) to say no to the expectation of being “always on”. Remote workers, and particularly cross-border remote workers, are more likely to regularly work across time-zones, having obligations during usual or night-time hours, meaning the right for rest breaks between shifts may be in jeopardy.
In January 2021 MEPs called on the European Commission to propose new law that enables those who work digitally to disconnect outside their working hours. The UK is no longer a member of the EU, so although the new directives and legislation will not take effect in the UK, other challenges to retained EU law may still impact UK workers. That means if a citizen in an EU member state refers a case to the European Court of Justice (ECJ) regarding working time and remote working, that case will be persuasive to the UK due to retained EU law under the European Union (Withdrawal Agreement) Act 2020. For example, as the WTR is still in effect, any rulings in the ECJ will still be highly interesting to the UK courts, such as those made by remote employees under Articles 3, 4 and/or 5 of the WTR. Furthermore, the duty to protect the health and safety of employees, which exists under the HSW and in common law, also has bearing on working time issues.
Part 2: Legal Implications for “cross-border” Remote Working
Contractual terms
Remote working creates complexity around employment contracts, particularly for employees of companies who do not have an entity in a certain jurisdiction. Although a UK-based employee may be working in their usual country of residence, the employment itself may be through a consulting agreement as the company is cross-border (for example, in France). Similarly, the employer may be in the UK, but the UK employee may permanently be working cross-border in the EU. Both administer similar legal implications towards the employee.
Where an employer does not have an entity in the UK, the employer may require UK employees to be self-employed rather than directly employed, or offer their employment through an employer of record (EOR) (where a third party employs the employee on behalf of the employer) such as Remote, Omnipresent, or OysterHR. Both options have legal implications which impact the employees directly.
Employees working for UK companies without entities in the employee’s EU country of residence are likely to see impacts on how their contractual terms are arranged. Generally, there are three options available: a UK employment contract where an employee may be subject to additional taxes in the country of residence, EOR, or self-employment. All three of these contractual options have distinct legal implications to the employees themselves.
Self-employment
Remote workers are taking the self-employment route as one of the few options available, and that with lower cost-implications to both parties (due to not engaging a third party). However, Personnel Today argues these employees are “being subjected to other forms of unfair treatment,” following the 2021 Supreme Court judgement in Uber BV v Aslam. The case went even further than Autoclenz v Belcher, where Lord Clarke described the approach as looking beyond the terms of any written agreement to the parties’ “true agreement” with “a purposive approach” to protect vulnerable workers.
Indeed, some employers prefer self-employment because these agreements are cheaper compared to direct employees, and also because they do not need to cover the required legal protections and benefits of direct employees. However, alongside the momentous achievement in labour rights, the Uber BV judgement casts doubt on how agreements in non-traditional arrangements will be interpreted, and particularly for those working “cross-border” in self-employment, where the contract may be “put aside” despite two willing and informed parties.
Both Uber BV and Autoclenz Ltd, achieve stronger protections for vulnerable employees, but may put remote workers in positions which are not straightforward. The deviation from the principle of freedom of contract is a crucial wrinkle for remote workers, where there is limited substantive law giving insight into how a court may interpret the reality of a remote working situation beyond the contract.
Employer of record
An EOR is a third-party organisation that hires and pays an employee on behalf of another company and takes responsibility for all formal employment tasks. In recent years many new players have emerged in the market with a specific mission to simplify cross-border remote working. However, even being employed directly by EORs and avoiding the legal implications of ‘self-employment status’, remote workers are still faced with other complexities.
Differences in local laws between the country of employment and the ‘ultimate employer’ (meaning the employer engaging the EOR to employ the remote worker on their behalf) mean that employees of EOR may be missing out on benefits, or subject to obligations, which they and their ultimate employer may not be aware of. This may manifest in differences in statutory redundancy, state holidays, tax implications on shares and capital gains, for example, where the ultimate employer is not educated or aware of how to proceed.
Finally, there is no EOR-specific legislation in the UK or in the EU where cross-border employees may enter these arrangements. This means the relationship between the employee and their ultimate employer may be somewhat opaque when, for example, using a reference to apply for a mortgage, or in cases of redundancy or unfair dismissal. Redundancy is a significant challenge, as an employee is entitled to a consultation where they may be offered suitable alternative work in their company. However, where an EOR business’s obligation to provide suitable alternative work exists is almost entirely speculative, and the ultimate employer using the EOR to employ the remote worker may be able to avoid their otherwise existing obligations.
Part 3: Reform
When approaching this research topic, it became apparent that little existed in the way of primary and secondary sources on how the negative legal implications faced by remote workers could be challenged through reform. The concepts are largely new, and there is little parliamentary or judicial discussion on many matters which have been identified already by this paper beyond some discussion around Working Time and potential rights to disconnect. Furthermore, the common law moves slowly, and it may be some time before many of the true nature of these implications are fully revealed within the courts.
For this reason, in order to better understand the operational and commercial implications, and identify where laws may be reformed, this paper conducted a research programme. Experts from within remote working companies, EOR businesses, and UK employment law firms were asked how these legal implications affect their employees and clients, and where change may be due. The research included detailed, qualitative interviews with 7 business leaders, and shorter quantifiable questionnaires with an additional 19 business leaders with specific expertise in the space. The research highlighted several areas for legal reform, all touching on the aforementioned legal implications. Roughly half (47 percent) of those interviewed employed ‘cross-border’ remote workers, and almost all reported a diversity of challenges faced by remote workers, cross-border or otherwise (only 5 percent of those interviewed saying they felt all remote workers faced the same legal implications). (Figure 1 below)
Of those interviewed, 32 percent stated that they saw these legal implications as blockers or challenges to their ongoing remote working (Figure 2 below), however every individual interviewed (100 percent) agreed that legal reform is necessary. This discrepancy is likely due to the high volume of interest and advocacy from employees, compelling employers to take legal risks to benefit employee engagement.
“In country” reform
Remote working legislation
As mentioned in ‘Relevant Legislation’, some countries have begun to legislate elements of remote working in domestic law. A suggestion for reform is a statute of sovereign UK legislation within which all remote workers are awarded certain rights and obligations: the Remote Working Act (RWA). The suggestion is based on research outcomes that called for various legislative changes, leading to the insight that a significant change may be more effective and efficient. This legislation would be landmark, and although countries such as Ireland have discussed introducing legislation affording employees the right to ask to work remotely, no government has yet taken the step to protect and define subsequent remote working rights and obligations in a single piece of legislation.
In an interview with a HR Consultancy CEO, the RWA was proposed to cover crucial areas such as health and safety in the home-office, and clarify which requirements and responsibilities fell with a remote employee. This would offer requisite clarity and guidance on how remote workers must be treated regarding ergonomic setup, and how an employer can balance an employee’s right to privacy when conducting video ergonomic risk assessments into their home (for example).
One EOR CEO (EOR 2) discussed the requirement for a reimagining of the WTR which was written with work “in a place in mind”. As will be discussed in the section entitled ‘Achieving Reform’, the UK is now able to repeal the WTR entirely. This gives scope for the UK to introduce an approach towards working time in the RWA, removing the burden on employers and employees to interpret current WTR and subsequent EU rulings in the new remote working world. Worryingly, this could leave remote workers with little protection, or with more responsibility to self-report.
Furthermore, any UK sovereign legislation specific to remote workers can afford additional remote working rights, such as the right to internet access which is encrypted and better equipped for GDPR compliance. This would offer new rights to remote workers, and particularly those who work from home, where their employer may not provide office and equipment.
Interpreting Article 8
For employees and employers who share an entirely digital relationship, such as many remote workers, it is not entirely clear how an employer respects its obligations surrounding employee privacy. Although it is clear that reading an employee’s emails is likely to be a breach of UK law, it is not resolved how monitoring interacts with Article 8 in an entirely digital relationship. Remote working means that new technologically advanced monitoring methods are used to maintain and track time, attendance, and productivity.
This topic was rarely raised by those participating in the research (Figure 3 below). An assumption can be made here that employees and employers are not as familiar with their rights and responsibilities under the HRA as they are under other more commercial privacy legislation such as GDPR (which was mentioned consistently in the research). Additionally, this may be due to the relative rarity of claims of this type in the business world. Amy Cunningham, Employment Solicitor, stated that she had not seen any challenges under the HRA in her time in practice, citing that any HRA claim would more likely be brought as constructive dismissal via a breach of trust and confidence.
Practically, individuals suffer a high barrier to raising claims under the HRA. This is due to both; personal reasons, with some feeling raising human rights violations may be “perceived as hyperbolic”; and procedural ones, where if an individual raises a claim under the HRA, one can generally only bring this against a public authority. It’s difficult, although not impossible, to raise against another private body, and a claimant must bring the claim under a Vehicle Action.
Section 3 of the HRA compels courts to interpret existing legislation in line with the HRA, which gives the act broad powers even if they are not regularly engaged. Without guidance it may be difficult for employers and employees to become acquainted with their various rights and obligations. For these reasons, reform in this area takes the shape of an ECHR declaration or guidance to aid the interpretation of Article 8 with remote working in mind.
“Cross-border” reform
An “un-commoditised gig economy” contract
A HR Consultancy CEO described IR35 as a “sledgehammer”, making remote working and self-employment more difficult for remote workers and their employers. However, others interviewed largely praised IR35’s positive impact on ‘legitimising’ the self-employment relationships which have long been a staple of cross-border remote working. However, with rulings such as Uber, developing a new contractual approach for UK remote workers on self-employment contracts may be required.
One expert said their “frame of reference is as a Californian, where there is an effort to create an employment category for ‘gig workers’.” Their suggestion for reform is a specific ‘un-commoditised gig economy’ contract, where a self-employed person who meets certain requirements is entitled to this new type of contract (knowledge worker, above a certain pay threshold, or working for a non-UK entity company which pays an additional benefit stipend). This would see a set of laws to create a new category for remote workers of an out-of-country company, such as a knowledge worker for a technology company. Then, the employer could register, report their remote workers, pay towards their local national insurance, but have the individual self-declare tax in their country of residence.
Ultimately, a new type of contractual relationship for self-employment results in a band-aid on a deeper issue: how to legitimately employ someone cross-border where the employer has no entity. However, where the alternative may require a treaty, the UK enacting sovereign legislation of this sort may have the most realistic effects on these complex legalities.
Treaty employment contract or a European mutual recognition framework
Mutual recognition is the principle of EU law under which legally sold goods in one EEA country can be marketed and sold in any other. For the exporter, this means that a product legally on sale in one country should not have to meet a second set of requirements in the country to which they are exporting. For employment, this would mean as long as a worker is contracted in one member state, they meet the requirements to work EU-wide. However, since the United Kingdom has exited the EU, any EU Recognition Framework would likely not impact UK remote workers.
One further suggestion from the research is radical: a multiple-country treaty legitimising an international employment contract, where a worker can work freely in a treaty-area, potentially including the UK. This new employment contract would enable a more consistent approach to holidays, taxation, etc. The proposal in this instance would be that there is a “hurdle” of the minimum rights awarded to any such agreement, and even if an employee’s ‘in country’ rights exceeded that, if they signed a remote working agreement such as this, they would give up those additional rights. For illustration, if a remote worker were engaged in Norway, despite the fact they may be entitled to 31 days holiday in that jurisdiction, they would be entitled to the 28 days offered by the treaty. Taxes are managed similarly to the un-commoditised gig economy worker contract, where the employer is responsible for the taxes in their country of residence, requiring only that they are a treaty member state.
This has sweeping economic and societal implications, leaving some experts concerned, “the aftershock there would be too massive.” Such reform would result in fundamental changes; it has potential to resolve many in-country and cross-border implications, but would also alter how EOR businesses run, and engage new responsibilities for employers (such as additional tax or reporting liabilities). Perhaps businesses are hesitant because this makes things more difficult for them in some respects. What is clear is that, to achieve this reform, the public sector must act and propose fundamental changes in how countries operate together across borders; in a post-Brexit Europe, the experts seem sensible to remain skeptical towards the required change happening anytime soon.
EOR legislation
Although a mutual recognition framework, or new treaty, may be the most comprehensive solution, several interviewees agreed that it may be highly unlikely to see the requisite member state agreement on such an outcome. For this reason, the private sector, and particularly EOR businesses, may be the solution.
One EOR CEO (EOR 1) shared that some “older-generation” and bad-faith actors exist in the EOR space, where they prey on vulnerable employers and employees. EOR-specific legislation (The EOR Act or EORA) could be introduced in the UK with the hope of achieving two main aims: further legitimising the EOR industry as a way for the private sector to solve some of these complex cross-border issues, and creating clearer relationships between employee and end employer to protect vulnerable remote workers existing within a legal grey-area.
This legislation would provide where and how the UK courts can hold an ultimate employer to account, or where an employee may be able to “opt in” to an employer’s headquarter’s statutory benefits, such as holiday entitlement. It may give clear instructions on how a redundancy situation is to be resolved in an EOR relationship, and how an ultimate employer is responsible for the health and safety of any remote workers. This EOR legislation has two benefits: broad reform which solves many legal challenges faced by remote workers, and the legitimisation of a prospering industry that could keep up with innovation in this changing landscape.
Achieving reform
The UK left the EU on 31 January 2020 ending 47 years of membership; Brexit brings legislative possibilities not open to current EU member states. The UK has, for example, traditionally been hostile to the WTR. Now, the UK has the freedom to override the WTR and introduce legislation which parliament finds more reflective of the needs of the UK population. In remote working, this may mean flexibility to revoke, amend, and repeal legislation that is incompatible with the WTR, but which benefits UK remote workers and the UK economy.
A shared fear of many of those interviewed for the research was that the pace of the EU commission would not match the pace of change and innovation in the remote working space. One interviewee expressed a concern that EU-sanctioned remote working legislation may come into play like GDPR, which was responsive to challenges already in existence rather than legislating for a prosperous future. This fear is something that citizens in the UK can be absolved of, but does require swift action from the UK Parliament to enact remote working legislation such as the EORA or RWA. This swift action is to capitalise on the economic benefits, avoid negative impacts on vulnerable workers, or force businesses to avoid remote working. EOR 1 stressed that a significant economic impact can be driven by individuals who are currently economically inactive and would be willing to join the labour force if given an opportunity to work remotely.
Businesses in the UK need to rally together as a voice for action; with 100 percent of those interviewed agreeing that reform is necessary, parliament should be informed by those ‘on the ground’ and employed as, or employing, remote workers. Individuals, too, must voice the importance of a new approach to labour rights in a digital age, advocating for reformed rights to disconnect, privacy, and safety when working remotely.
Conclusion
Forbes believes that, “although Covid-19 vaccines could become widely available to the public as soon as the second quarter of this year [2021], business leaders must understand that remote work is here to stay.” A wide array of prominent businesses have agreed to allow staff to permanently work remotely, including Spotify, Facebook, Twitter, Shopify and other tech giants. The data is clear that employees themselves are seeking more flexible working arrangements such as remote working.
Employees who have been working remotely during the COVID pandemic have been subject to the implications of laws which are unsuitable for a future of greater flexibility in remote working, including cross-border employment. Helen Pankhurst, Centenary Action Group Convenor said (speaking of Parliament’s return to ‘in person’ work): “it’s hard to believe that while the rest of the country is embracing new ways of working through screens, mobiles and laptops Parliament is considering turning its back on the technological innovations ushered in during the pandemic.”
In-country remote workers are subject to further opportunities for privacy intrusion, which may be a breach of the HRA, but which little guidance is offered. Meanwhile, workers may not adequately meet the requirements of data-privacy laws such as GDPR, and may find themselves vulnerable to attacks on their home networks or working in cafes. Ambiguity regarding workplace health and safety may force workers to take on greater responsibility for their own health and safety, mental health, disconnection, and ergonomics.
These legal implications are further impacted for employees who find themselves in ‘cross-border’ agreements. Some of these employees are forced to work on consultancy agreements with limited protections and are required to navigate complex legislation such as IR35. Some workers are employed through EORs, which themselves are bound by unsuitable laws, inhibiting their ability to be a true ‘middle-man’, leaving employees with less-satisfactory stability. These implications are not yet fully understood concerning redundancy and unfair dismissal, resulting in remote workers losing out on crucial rights.
One research participant shared an insight that successful remote work requires “a more considered approach than a traditional model of working”, something which is dangerously lacking due to remote working’s rapid adoption. The current state of legislation within the UK offers much to be desired, and remote business leaders agree that “current laws are […] lagging at least 30 years behind and are completely maladapted to the new reality.” This requires radical reform, from new legislation impacting health and safety to data-protection, to new forms of EU-wide employment contracts or treaties which may have sprawling economic impacts across Europe.
The UK, free from the EU, is in a unique position to make radical progress in this space, adapting some retained EU legislation that may inhibit remote employment from thriving, or otherwise cost the economy. This paper supports remote-working-specific contracts and legislation, affording remote workers appropriate rights, and enabling more responsible remote employers, rather than subjecting both to confusing and burdensome bureaucracy.
To achieve such reform, employers and remote workers must demand parliament to take action quickly. The price of tardiness may quickly outstrip many economic benefits. Although the future remains uncertain, post-COVID and post-Brexit Britain would be misguided to assume that vaccines and exit from the EU will usher in a deflation in the interest in remote working. Indeed, now is the time to embrace — and prepare for — a more permanent remote work landscape for the good of the UK economy, innovation, environment, and workers.
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