The advantages of global mobility can only be achieved with careful planning and good legal advice. Determining the form that an employment contract takes for example can be a complex decision. Global mobility employment contracts require consideration of local and foreign immigration, taxation and employment laws.
UK businesses and their employees may understandably prefer to simplify matters by continuing their UK employment contract.
Unfortunately, this isn’t always a possibility. Many countries require foreign nationals working within their jurisdiction to obtain employment with a local entity.
Types of global mobility employment contracts
Secondment
When transferring staff to a new country, for simplicity and stability, the preference of employers and employees will usually be to continue the same UK employment contract.
Where this is possible, all that is required is a letter of assignment, modifying the employment contract to allow for the assignment and the new responsibilities of the employee in the host country.
Secondments permit an employee to be ‘seconded’ to work for the benefit of a foreign company while continuing to be employed by the same home country employer.
This ensures that the employee’s leave entitlements and other long-term benefits are preserved, including any pension scheme that is provided by the company.
It also means that the employee will continue to benefit from the legislative protections applicable to UK employees.
Typically, a host company will pay a fee to the UK business in return for the employee’s services.
Transfer
As an obstacle to global mobility, host country immigration law frequently places restrictions on foreign workers.
In the United Arab Emirates for example, in order to obtain a work permit, applicants must provide evidence of a standard form, employment contract with a local entity.
A host country employer may be a foreign branch of an international company, the partner of an international joint venture or a local sponsor.
UK businesses may seek to establish a legal entity within a host nation for the purpose of assigning employees.
There are also professional employer organisations set up in favourable tax jurisdictions that may be utilised.
UK employers should also take into account any costs or benefits payable on termination of their employee’s contract.
Dual employment
Dual employment allows for two simultaneous employment relationships.
This can be utilised where an employee’s services benefit both the host entity and the UK company.
Dual employment can, however, be needlessly complicated, as it requires companies to consider the implications of twin contractual relationships, taxation, payroll, benefits, and employment obligations, operating concurrently in two separate jurisdictions.
UK businesses must be clear on the division of responsibilities between the two employers.
If an employment dispute arises under a dual employment scenario, there can be potential liability for both the UK and the host country employer.
Employers will need to ensure that any benefits, such as annual leave, run concurrently in the UK and the host nations.
There are variations of these contractual relationships that can be utilised to meet the particular global mobility needs of a business. A UK employee could, for example, remain suspended or on a leave of absence for the purpose of their foreign assignment.
Global mobility considerations
Taxation
The type of employment contract that is put in place can impact the tax obligations of both employees and employers.
Some countries have tax treaty agreements with the UK.
Where these treaties are not in place, the employee and employer may be liable for taxation in more than one country.
Under US law for example, there is a general requirement for citizens to pay tax on all personal income, regardless of where it is accrued.
Taxation requirements vary significantly between different jurisdictions.
Even where a globally-mobile employee remains employed by a UK entity, local laws may require tax to be paid where the services are actually performed.
In India, income tax is levied on all services rendered within India, even where a salary is paid by a foreign entity and is received outside of India.
There may also be a requirement within the laws of the host country to pay employees with local currency and using a local payroll.
Employment laws
Where employees commence a local contract with a foreign entity, employment laws applicable to the host county will apply.
The health and safety standards and anti-discrimination and equality policies may also differ between jurisdictions.
UK employers should give careful consideration to these differences and may insist on maintaining higher standards, even where a host jurisdiction does not require them.
In some instances, where health and safety standards are inferior for example, a UK business may require set standards to be maintained in order to protect their international reputation.
In other cases, where the local laws of a host country are markedly different from those in the UK, training must be supplied to the expatriated employee.
Even where a UK employment contract is maintained and the employee is seconded to a foreign jurisdiction, the practical effect may be that the employee will fall under the jurisdiction of both countries’ employment laws.
Employers seeking to maintain dual contracts must also give proper consideration to how the employment laws of the UK and the host country intersect.
Global mobility guidance
Despite the many benefits of a globally-mobile workforce, there is a range of issues that an employer must properly consider before sending employees abroad.
We are experienced advisers to employers on global mobility and the related legal issues. To find out how we can help you with your mobility needs, or to discuss a specific query, please contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
