An increasingly mobile workforce can inadvertently trigger employer tax and regulatory obligations in overseas jurisdictions and because of this there is an increased need to track cross-border employee movements to avoid potential costly financial penalties and sanctions.
With extended business trippers and commuters, while starting to become more commonplace, in the main still played second fiddle to the more traditional long-term type assignment (i.e. 12 months or more in duration). Typically, under such assignments the immigration, tax and social security implications were well understood in advance and well documented in a business’s employee mobility policy, making it more straightforward for a business and its assignee workforce to be globally compliant from a tax and other regulatory perspective.
While the traditional long-term assignment is not on its death bed by any means, it is today being replaced more and more by shorter-term flexible type working arrangements. On occasion, this also involves the hiring of local and/or so-called independent contractors. Factor in the increasing trend towards international remote working, and it is fair to say that businesses have never before had to deal with such complexities, whether from the perspective of employee wellness, duty of care, regulatory compliance (including tax, social security and immigration), or indeed mobility policy design and application.
Our recent Global Mobility Round Table Discussions, held in late 2021, focused on the future of global mobility.
The Covid-19 pandemic has accelerated a shift in employees’ expectations, forcing businesses to redefine the concept of mobility. Employees are effectively demanding a more flexible working environment, with a reduced personal and family impact—something that businesses are having to embrace to retain talent.
While such “new” type working arrangements are—in theory—in many cases more cost-effective than the traditional longer-term assignment, this comes with a “health warning.” Several participants in our round table discussions advised that they are genuinely struggling to identify the location of all their workforces at any given time.
Absence of accurate knowledge of the location of a business’s workforce on a real-time basis can clearly prove costly. Tax authorities are no doubt alert to the potential tax revenue from business travellers and remote workers and on compliance here the onus typically falls on the employer.
The increase in remote workers, business trips and short-term employee moves can potentially increase the risk of employees falling “under the radar.”
A common misconception is that there are no employment tax related issues if an employee spends less than 183 days in a country in a tax year. While this may prove true in some instances, businesses cannot adopt a one-size-fits-all approach here. An employee may be taxable in the overseas country from day one.
Without a business tracking its employees’ movements, one or more of its mobile employee workforce can inadvertently trigger employer obligations in the overseas jurisdiction without the business being aware of any repercussions. For example, the business may not be aware that it is liable to withhold tax (and social security) from an employee’s salary, and non-compliance may result in penalties being imposed on the business by the foreign country authority. It is also possible that it could lead to an employee being present in another country without the appropriate work visa.
Such incidences of non-compliance could result in the business and its mobile employee workforce being sanctioned, such that the business is not permitted to conduct business in the foreign country and/or is liable to a financial penalty. Indeed, it is not uncommon to hear of employees being deported in such instances.
In the U.K., a business can be prosecuted under the corporate criminal offense legislation for evasion of U.K. or foreign tax and the U.K. tax authority, HM Revenue & Customs (HMRC), expects a business to put in place reasonable procedures to demonstrate it compliance with this legislation.
A recently conducted poll of 500 C-suite executives within the mid-market showed that a sizeable percentage of businesses either do not track employee cross-border movements (2%), or do so manually (46%); the remaining 52% responded that they have a formal integrated tracking software system.
More sophisticated tracking systems and technology solutions are available, and we predict they will become more commonplace in the future, as the complexity of business travel encourages companies to invest in solutions that not only facilitate compliance but also prompt quantification of any unbudgeted costs.
It is possible for employers to use an online platform with a smartphone app which enables them to track their employees’ movements, and includes a system of alerts which warn when a tax event could be on the horizon so that action can be taken to minimize any unintended tax consequences.
It is not uncommon for businesses to limit overseas days to anywhere between 30–90 days in each 12-month period to minimize any potential tax and social security risks. Clearly, such an approach comes with a “health warning,” as highlighted above, as an employee could potentially trigger a tax liability overseas from day one.
Of course, some businesses may be prepared to adopt such an approach in the war to attract and retain talent.
Simply put, a business should be continuously tracking its mobile workforce. Even if an employee’s number of days within a particular country does not trigger any tax obligations, it may trigger reporting requirements, and therefore days need to be accurately tracked and reported to the foreign country tax authority.
Short-term business visitors to the U.K. who are resident in countries with which the U.K. has a double taxation agreement need to be tracked and reported to HMRC under the Short-Term Business Visitors Agreement. If an employer does not sign up to the Agreement, then pay as you earn (PAYE) tax withholding must be operated from the first day of an employee’s visit to the U.K.
At the end of the tax year, the employer has the obligation to submit a report to HMRC detailing the number of visitors along with the number of days they have spent in the U.K. The reporting is reliant on accurate tracking from day one which only reinforces the need for all impacted businesses to have robust tracking processes in place to facilitate tax and other regulatory compliance.
Mobile employees who are not performing duties in a foreign country under the terms of the employer’s mobility policy often fall off the radar when it comes to tracking, and a business may have unclear processes in relation to business travellers and remote workers, resulting in non-compliance from a tax and other regulatory perspective.
The business might assume that the global mobility team is responsible for tracking the cross-border movements of such employees, but perhaps this is not always the case.
The rise of the remote worker and the accelerated shift towards shorter-term project based and commuter type assignments encourage all relevant stakeholders within the business to be more joined up in their approach. Aside from the potential tax, social security and immigration considerations, there are numerous other issues to consider, including duty of care, health and well-being and talent retention. While the solution may vary from business to business, it is our view that given the various issues involved, other stakeholders from, say, within HR/Finance/Legal/Operations/Board of Directors need to be part of the solution.
For example, a business could be compliant from a tax perspective but non-compliant from an immigration perspective if it is not considering whether an employee has the “right to work” in the relevant country. In the U.K., a company officer can be jailed and fined if found guilty of employing someone who does not have the right to work in the U.K.
A business should implement an employee mobility policy or policies that clearly communicate to all stakeholders the steps to be followed to enable an employee to perform work in a foreign country. Such policy or policies should also cover the extent to which international remote working is allowed; what constitutes extended business trips; commuter assignments, short-term and long-term assignments etc., and the terms and conditions governing each type of arrangement.
Considering the projected increase in cross-border employee mobility and remote working for the foreseeable future, it is imperative that a business is geared up to facilitate global tax compliance in respect of its mobile employee workforce.
We recommend that any business with cross-border employee movement: