Our thanks to the 100-plus attendees on our “Managing Working Parents” webinar yesterday. As anticipated, we didn’t get to all the questions on this currently even more than usually vexed topic which were submitted through the chat box facility thingy, so as promised, here are some further answers (more to follow soon):
If you have done a trial period, should you always give the reason why it ended?
Yes, absolutely. If you do not, the employee may take the view that you had really intended to say no all along but simply lacked the guts to do so at the time of his request. That might indicate pre-determination and hence a failure to follow the flexible working rules. An unwillingness to explain will also inevitably suggest that your reasoning is too thin and feeble to be exposed to daylight, or that it isn’t really valid at all, just an unvoiced fear of creating a precedent or the view that almost everyone agrees with but no-one can prove, i.e. that maximising collegiality, team work and productivity to the good of the business often requires more than virtual contact.
But even better than stating at the end of a trial period why it failed is also stating it at the beginning, i.e. making clear from the start the indicators of success or failure of the trial to be relied on by the business. If you highlight them at the outset and build them expressly into your written agreement to the WFH arrangement agreed, reliance at them at the end will be much easier.
Does working from home include working from your home country if you are not from the UK?
In the very early days of the flexible working regime a client’s employee asked if she could WFH. Oh yes, where’s that, then? Lagos, she said, and everyone just fell about laughing. Skip forward over a decade, however, and advances in technology have made viable working arrangements which would have been completely unthinkable then. But even if from the IT perspective you can no longer distinguish Lagos from Godalming, that is not the only question.
Working outside the jurisdiction can create significant regulatory issues in some industries (potentially more so after Brexit) but can also generate some really cracking income tax and social security burdens for both employer and employee. The employee may acquire additional protections against dismissal or limits on working hours through the application of local law, and the employer may find that the employee’s long-term presence in his home country is treated as creating a permanent establishment there for corporation tax purposes. We have done an international report on this very topic – if you are interested, please contact us. Remembering that one of the grounds on which a flexible working application can be refused is the burden of additional costs, working from your home overseas on anything but a very temporary basis is something which employers should be seen to investigate in good faith and with an open mind (the rules require it) but can generally refuse. However, if the employee takes steps to mitigate those additional costs, for example by accepting a lesser salary to offset them, agrees (if it matters to the job) to respect UK working hours despite any time differences, etc., and is willing to make his flexible working application for a short and finite period only then there is nothing in the law which prevents the employer from agreeing to this if all else stacks up.