Employers are obliged reasonably to consider an employee’s request for permission to work from home. However, in a ruling of critical concern to the ever-increasing cohort of globetrotting workers, an Employment Tribunal (ET) has ruled that the rule does not apply where the ‘home’ concerned is outside the UK.
A civil servant wished to accompany his wife to Luxembourg, where she had obtained employment. He sought permission from his employer – a government department – to work from his prospective new home in Luxembourg full time. After his request was refused, he launched ET proceedings alleging that the department had failed reasonably to consider his application.
Ruling on the matter, the ET noted that Section 80F of the Employment Rights Act 1996 confers on employees a right to request variations of their contracts so as to enable flexible working. Employers must reasonably consider such requests and may only refuse them on a number of specified grounds, including organisational difficulties, cost and a detrimental effect on the ability to meet customer demand.
The ET observed that the question of persons employed in the UK working remotely from abroad hardly ever arose prior to the onset of the COVID-19 pandemic. One obvious point was that employees who work full time at a place of business in the UK will generally have their usual abode, or residence, in this country.
It was important to note that a successful application to work full time outside the UK would result in an employee’s normal place of work being in a foreign jurisdiction. In the case of a civil servant, it would effectively create a UK government workplace within the jurisdiction of another sovereign state. Any such employment would also not fall solely within the jurisdiction of UK employment law.
An employer confronted with an application to work full time from abroad would need to take legal advice on the employment laws applying in the country concerned. It might also encounter security, data protection and other risks and would be exposed to reputational damage if the employee failed to comply with local laws on tax, residency and permission to work.
The ET found that Parliament had envisaged the word ‘home’ to mean a home within the UK when it enacted Section 80F. The provision was never intended to apply to working outside the UK. The civil servant’s application to work full time from a home outside the jurisdiction thus did not fall within the scope of Section 80F.