UK: Modern working practices: remote working

published on 18 February 2025 | reading time approx. 2 minutes

The rise of remote working has brought new challenges to employment law in the UK, particularly in identifying the territorial reach of employment rights. Tribunals now must consider the facts of each case individually, a shift from previous practices before remote working became prevalent. This change highlights the importance for employers to clearly understand and define an employee's base to avoid confusion in the event of a claim.

Impact on Statutory Rights

When an employee's role allows them to live and work outside the UK, it raises questions about their statutory rights under the Employment Rights Act 1996 (ERA) and the Equality Act 2010 (EqA). With the increased flexibility in working locations, advanced technology, and evolving work culture, tribunals are now faced with cases that old case law may not adequately address.

Key Considerations

Location of Work: The primary factor is where the employee was working at the relevant time for purposes of a claim, rather than what was agreed in the employment contract
Conduct of Parties: The way the parties have operated the contract is also crucial

In cases where an employee's base of work is disputed, tribunals will consider factors such as the location of the bank account for salary and benefit payments, HMRC accounting, the governing law of the contract, the amount of time, if any, living and/or working in the UK, the employee’s place of residence and status, where the employee was recruited, the country in which the employee paid its taxes, the employee’s work structure i.e. management, administrative support etc. Without a strong connection to the UK and its employment laws, an employee may not be awarded protection under laws in the UK.

Potential Issues

Employers may face challenges when:

Granting extended remote working requests abroad
Employing individuals who work overseas
Assigning employees to work abroad without updated documentation
Not knowing the location of employees working remotely within the UK
Failing to take action if employees are found working abroad without prior permission

Long-term remote work abroad can lead to employees losing their UK employment rights and acquiring rights in the country they work in.

Employer Protection Measures

Define Work Location: Clearly define the employee's work location in the employment contract and ensure clauses regarding working from home or abroad are carefully drafted
Temporary Amendments: Inform employees about temporary working abroad arrangements, including start and end dates, location, and payment terms, through a letter temporarily amending their contract
Jurisdiction Clause: Clearly state in employment contracts that the employment relationship is governed by English and Welsh (or Scottish) law
Identify Base Location: For employees who travel abroad regularly, ensure their primary place of work is identified in their contract
Maintain Evidence: Keep records of UK-based employment, such as salary payments, meeting attendance, and UK projects or assignments
Regular Reviews: Regularly review and update employment contracts to ensure they remain current