WFH contractual obligations and considerations post-pandemic and Brexit.

The pandemic and consequential restrictions resulted in many employers having to make arrangements for homeworking for a significant number of employees. Whilst for some this was time limited to the strictest lock down periods and had minimal requirements for the employer, employees needing only computer access, internet and appropriate software, for others the period has extended, and further considerations have come into play.

An employee does not have an automatic right to work from home, and place of work is often dictated by provisions in the contract of employment. However, that does not prevent an employee from requesting such an arrangement or an employer from offering this if considered appropriate (either full time or hybrid basis). For an employer to insist on homeworking the employment contract would need to provide for this or be amended to allow this.

There are numerous costs, practical and legal considerations that employers need to give thought to when deciding if home working is appropriate including:

• Monitoring working hours
• Benefits of flexibility/convenience for employees v the need for interaction in the workplace
• Whether IT infrastructure is suitable
• Compliance with data protection legislation
• Provision of equipment: who buys, who maintains, who insures
• What health and safety assessments need to be carried out
• What insurance needs to be in place and who pays for this
• Whether any disabled employees require reasonable adjustments to be made

Gibraltar specific considerations

A major consideration affecting Gibraltar employers is the number of employees who are cross border workers, who if working from home would therefore be working in a foreign country. This potentially has tax, social insurance, regulatory and corporate consequences that the employer needs to be cognisant of, and address appropriately, eg by restricting time periods home working is permitted or factoring in financially for costs and exposure in business planning.

How will this impact employment law practices in Gibraltar and other jurisdictions in the future?

A further trend which has arisen, likely as a result of the use of homeworking during Covid-19, is the rise in employers considering the possibility of hiring remote workers, who are employed by a Gibraltar company but work in their home country elsewhere. As above this requires consideration of tax, social insurance, regulatory and corporate implications. In addition, there is the issue of local registration and application of Gibraltar law. Employees who are not based in Gibraltar or nearby Spain will not be registered by the Department of Employment but that does not automatically negate the application of statutory protections provided by employment legislation, which will depend on the interpretation of provisions and terms of the contract of employment.

In this scenario employers will also often weigh up the options of using employees versus independent contractors, which may address some of the issues.

The impact of arrangements following Brexit will also influence this area, and how the work force is affected may require employers to further consider place of work arrangements.

For any guidance needed in relation to contractual considerations and obligations, feel free to drop me a line.