Working remotely from a foreign jurisdiction leads to tax, insurance and employment law implications
By Katie Byrne, February 04 2022
Question: My colleagues and I have been working from home for almost two years now. Our employer introduced a long-term remote work policy but they made it very clear that we must work from a location in Ireland. We can’t work from abroad.
One of my colleagues has been working from Spain, on and off in stints, since 2020. We work very closely together but in the early days he wouldn’t admit that he was abroad. I could see during Zoom calls that he had a suspiciously dark tan. Then, during a phone call one day, I could clearly hear his children jumping into a pool. I asked him straight out and he begged me not to tell anyone.
We’re currently in the middle of a very demanding project and he’s taking off to Spain once again. He refuses to answer emails I send him after 6pm when he’s there. He just clocks off. And to be perfectly honest, I don’t think it’s fair that he’s over there living the life of Riley while I’m working until 9pm or 10pm every night. I’m thinking of reporting him to HR. At the same time, I don’t want to start an all-out war. What should I do?
Answer: While working from home was a fairly nebulous concept at the start of the pandemic, companies have since given their employees clear guidelines on where they can, and can’t, work. Working remotely from a foreign jurisdiction leads to tax, insurance and employment law implications, which is why most Irish employers now insist on their employees working from an Irish location.
I shared your dilemma with employment solicitor Richard Grogan, who is currently dealing with a number of cases involving employees working for Irish companies from abroad. He says the situation can present “a nightmare” for both employers and employees, many of whom are unaware of the implications. “It can come as a nasty shock to an employer when they discover that an employee has been working from Spain for so long that they have now acquired Spanish employment rights,” he says.
“Similarly, it can come as a shock to employees when they find out that a massive part of their salary has to be paid towards the equivalent of USC.”
Richard thinks the issue should be reported to your HR department. However, in the same breath, he suggests that you raise the issue of your excessive overtime with them, too. “If a contract says work finishes at 6pm, then this person is entitled to finish at 6pm,” he notes. “And if the person who wrote the letter is working until 9pm or 10pm, then they should be talking to HR themselves.”
Strategic career consultant Rowan Manahan is of a similar opinion. “If the project is a ‘not business as usual’ piece, with a specific deadline, then the colleague being deliberately unavailable to answer queries past 6pm is selfish at best, possibly obstructive,” he says.
“However, if the overall company culture is long hours, routinely infringing on evenings and weekends, then perhaps your colleague is taking a healthy stand and you need to examine your working habits rather than being resentful of theirs.”
Before you take action, Rowan suggests that you “be really clear about what problem this colleague is creating”. He wonders if there is a way you can “nip this problem in the bud” and “save yourself a real battle later”.
“The most conspicuous issue here is not how you are feeling,” he notes, “but rather if the specific project, or the wider company interest, is being affected by your colleague’s behaviour.”
I also shared your dilemma with workplace coach and mediator William Corless of The Workplace Podcast, who suggests that you try to work out what exactly is triggering you about this situation. “Perhaps this is more a conversation about someone not carrying their weight and the question then is, how do you broach it? It could also be a question of values, whereby one person places a greater value on work, whereas the other places more value on family.”
WFH is a new dynamic which we’re all still trying to negotiate, he adds. “And sometimes we need to go back to the group to renegotiate our service level agreements.It may also be helpful to ask yourself if this is a true ethical dilemma, guided by a sense of justice and fairness, or a personal grudge, triggered by malicious envy.
The following questions might help you better understand your motivations:
1) Would you report your colleague if your current workload was relatively undemanding?
2) If you were considering quitting your job in the near future, would you be just as inclined to report your colleague?
And 3) Would you report your colleague if he was working from a cramped apartment in Oslo (where the weather is currently below zero)?
On that note, I might add that not all ‘stealth expats’ are chasing the sunshine. Some of them had to get away from cramped living conditions and relationship conflict. Others needed to be closer to their family support systems.
This isn’t to say that your frustrations aren’t valid. You’re overwhelmed with work and you possibly have visions of your colleague wearing a Hawaiian shirt at his desk and drinking pina coladas during his lunch break.
But perhaps you could try thinking of him as another human being who is coping as best he can with the emotional fallout of the pandemic, rather than a sun-kissed slacker who’s cheating the system.