1. Policy statement
1.1 The University operates in a global environment aiming to be among the best universities in the world encouraging creativity, independence, enterprise and initiative. We want to enable our staff to take the opportunities to undertake international travel as part of their work (e.g. research, teaching), in a sustainable way. However there are very significant complexities involved in international employment, i.e. where a member of staff is doing more than undertaking a short overseas trip for work purposes. Information on travelling overseas on short business trips can be found at 2.2.
1.2 Whilst most appointments are and will remain wholly based in the UK, there may be a need for an international presence, either on a short or long term basis. The University wishes to ensure that where this is required, that it has the ability to effectively manage the mobility of the staff involved.
1.3 This policy sets out the University's approach to overseas working and highlights legal and other compliance obligations that may arise from University business being undertaken from a non-UK country - be that research, teaching or other activities. The policy and associated processes seek to protect both the employee and the University.
1.4 When research grants specifically require an employee to be based overseas, the bid will include provision for the appropriate advice costs and time to secure the necessary advice for the employment of staff overseas.
1.5 The decision to commence operations in an overseas Country, i.e. the set up of a new entity can only be taken by the University Executive Board.
1.6 Due to the significant cost implications, complexity and risk associated with working overseas, staff may only be permitted to work from overseas for personal reasons in extenuating circumstances and for a maximum of 90 days (but in most cases will be much less) and must have the explicit permission of the Head of Department (with funding for reasonable advice costs arising from the decision to permit overseas working for personal reasons, funded from that department budget).
1.7 Any 90 day period spent overseas is inclusive of any annual leave or other leave, i.e. staff cannot work overseas for 90 days and then take a period of leave whilst remaining overseas, instead any intended leave must form part of the 90 period.
2.1 This policy applies to the following circumstances:
- When the University is recruiting an employee who lives and will continue to live and work in a non-UK country for 90 days or more.
- When the University is agreeing for an existing employee to be based in a non-UK country on an assignment or secondment for 90 days or more.
- Employees undertaking a period of research in a non-UK Country that is due to last for longer than 90 days
2.2 With the exception of section 1.7, this policy does not include staff travelling overseas for less than 90 days as part of their academic/teaching or research responsibilities or activities. For these scenarios, further information can be found on the following webpages:
- Business travel
- Travel insurance
- Policy for safe use of University information on all devices
- Export control guidance
- Data protection (impact assessment)
This policy aims to:
- Clarify the situations where overseas working may be considered. The position of the University is that this would only be approved for specific situations and the majority of staff will be based wholly in the UK.
- Ensure that all University staff who work overseas are treated fairly and consistently and that managers are aware of all the considerations they must undertake when considering employing new staff or agreeing to existing staff working from overseas.
- Provide information to departments about the considerations to be made when putting in place overseas working arrangements and/or where an employee is to work overseas together with the costs departments will need to pay to set up the arrangement.
- Ensure that there is compliance with the relevant legislation of the country where the work is taking place and in the UK.
- Ensure that both the University and the employee comply with statutory tax, social security, payroll and other legislative obligations.
4.1 The decision to employ or post existing staff to work in a non-UK country rests with the relevant Dean for academic departments or the Chief Operating Officer for professional support directorates, or their nominated authority.
4.2 No work or University business will be conducted outside of the UK for a period of 90 days or more without prior approval from the relevant decision makers.
4.3 In order to ensure that all legislative and tax requirements are considered, the University will seek specialist advice and take a risk-based approach when making decisions about employing staff to work from a non-UK country.
4.4 For the vast majority of job roles, there is an expectation that staff will live and work within the UK and be able to attend their place of work to carry out the duties required under their contract of employment and the Remote Working policy.
5. Items for consideration
There are significant cost, resource and risk issues involved in employing staff in a non-UK country, which must be considered at the planning stage. These include:
- 5.1 Tax and social security (national insurance) implications - When a member of staff is paid in the UK and is working overseas they may remain liable to pay tax and social security on their earnings within the UK, depending on their residency status. The individual's tax status is also pertinent and may influence their liability in the UK and in an overseas Country. The employee and University may also become liable for tax and social security in the country in which they are working. The rules that govern tax and social security are different in each country and usually quite complex - there is no simple "one size fits all" and bespoke advice must be taken on a case by case basis. This means that an individual could be liable to pay tax in a specific country but not the social security and vice versa. The University is legally responsible for ensuring that social security contributions are deducted correctly and paid to the appropriate authorities in both countries and may also be responsible for making appropriate tax deductions.
- 5.2 Where a member of staff is going to work in an EU country (excluding Switzerland, Norway and Lithuania) and they are expected to either return to the UK or be a multi-state worker (working in more than one EU member state), they are required to obtain an A1 certificate, generally for periods of work lasting 30 days or more, in order to be exempt from paying local social security. This remains the case post-Brexit.
- 5.3 Where a member of staff is liable for tax in both countries an agreement called a double tax treaty may be in place between the countries that allows the member of staff to pay tax in one country. These agreements are country specific; dependent on the individual's tax status therefore advice will need to be taken from an external expert in relation to specific cases.
- 5.4 Where a member of staff is liable to pay tax outside the UK the University may need to procure specialist services (funded by the employing department budget) to calculate the appropriate tax and facilitate payment of overseas taxes, a 'shadow' payroll. This is likely to result in an ongoing cost to the Department employing the individual. It may also be the case that in some instances the tax and social security costs in the overseas country are more favourable than the UK allowing for savings to be made.
- 5.5. Local taxes/company and accounting registration (corporation presence) - Employing staff overseas may result in the University creating a permanent establishment in another country. As a result the University could potentially be subject to local tax filings and payments, in addition to local accounting filings. For example it may be the case that by employing a single member of staff, who performs their duties for the University in another country, the University would be required to file audited annual company accounts, pay corporation taxes and social security contributions in order for the employee to legally work within the country.
- 5.6 Failing to do this could expose the University to the risk of prosecution and financial penalties. The administration cost of this set up and requirement to procure country specific advice will need to be taken into account when this applies. This would result in a cost to the Department employing the member of staff.
- 5.7 Work permissions/Visas - Working permissions or a Visa may be required by employees in order to work overseas. This will depend on their nationality and on the country in which they will be working from and the duration of the time spent out of the UK. There may also be implications on an employee's UK visa arrangements if they are subsequently working outside the UK, for example, if an employee with a Skilled Worker visa spends more than 180 days outside of the UK in any 12 month period, this could impact their ability to apply for settlement in the UK.
- 5.8 Pensions - There may be implications for eligibility to join (or remain a member of) the university's pension schemes for staff based overseas. In all instances, checks would need to be made by the University's Pensions Team and departments would need to meet any additional costs made in performing these checks.
- 5.9 USS - all eligible USS employees working overseas are to be treated in the same way as any other eligible employee. Any overseas employee must meet the usual USS membership requirements, remain employed by the University and ensure that there are no restrictions in the overseas country on being a member of a UK pension scheme in general. This covers all working arrangements, be it permanent or a secondment position.
- 5.10 NHS Pensions - eligibility for membership of NHS Pensions would need to be considered in conjunction with the NHSBSA (NHS Business Service Authority) on a case by case basis.
- 5.11 University of York Pension Fund/PPS - all eligible Pension Fund employees working overseas are to be treated the same as any other eligible employee. Any overseas employee must meet the usual membership requirements and remain employed by the University
- 5.12 Employment Rights - The statutory employment rights in the UK and the host country may be different i.e. annual leave entitlement, different bank holidays, parental leave and pay, how pay increases are awarded etc. While it is unlikely to be a significant issue for staff on University terms and conditions of employment, as an example, it should be noted that some European states offer significantly more generous maternity provisions than the current UK provisions. In some specific circumstances it may be appropriate to provide additional allowances to staff who are sent overseas on a long term assignment. This may include return travel from and to the UK, relocation expenses and additional living expenses. Guidance should be sought from the relevant HR advisor
- 5.13 Health and Safety - Prior to a member of staff being employed overseas a travel risk assessment should be completed and approved at departmental level and should be given due consideration by colleagues from Health and Safety Services to ensure that any risks are identified and where appropriate, steps are taken to mitigate these. Action will also need to be taken to ensure that the University complies with any local legislative requirements relating to Health and Safety. A more detailed risk assessment must be undertaken for assignments that will involve greater risks, including postings to destinations/areas where the Foreign & Commonwealth Office advises against travel (or 'all but essential' travel), or where the planned activities are deemed to be potentially hazardous.
- 5.14 Where staff are employed through a partner organisation, or seconded overseas, it is important to ensure that health and safety responsibilities are clarified. The University and partner organisation must agree who has responsibility for the Health and Safety of the employee and compliance with local legislative requirements. These must be clarified, in an agreement, prior to staff commencing employment. It is desirable that where a partner organisation has country specific Health and Safety expertise that this should be utilised.
- 5.15 Where a member of staff based overseas is directly employed by the University it may be necessary to procure specialist Health and Safety advice to ensure compliance with relevant country specific requirements.
- 5.16 Insurance - Employer's and Public liability insurance is arranged via the university's Directorate of Planning and Risk. The University liability insurance policy covers staff working within Great Britain, Northern Ireland, the Channel Islands or the Isle of Man. Cover is extended to employees working temporarily anywhere in the world excluding offshore work unless agreed with insurers. The definition of 'temporarily' for insurance purposes includes working elsewhere in the World between return visits to the United Kingdom. Staff working overseas are required to complete the online Travel Log in order to obtain business travel cover.
- 5.17 If an individual will be out of the UK for more than 12 months or are not usually based within the UK, then the University's Insurance team should be advised of the circumstances in writing.
- 5.18 Day to day management - Consideration will need to be given as to how communication will take place in general but also with regards to supervision and management, for example, dealing with sickness and holding performance review meetings.
- 5.19 Data protection and the safe use of information - If an employee's role involves processing personal data, this could give rise to data protection issues, especially if the employee will be working from a country outside of the EEA which is not subject to the General Data Protection Regulation and other EU data privacy laws. At minimum, a Data Protection Impact Assessment will be required, to assess the risks involved. Depending on the role and planned working location involved, it is possible that external specialist Data Protection advice may be required.
- 5.20 All staff working overseas, regardless of length, must understand their personal obligations in relation to the safe use of University information such as local legislation, export controls and encryption risks. Further information can be found on the Travelling abroad - safe use of University information pages and the export control guidance pages.
- 5.21 Sanctioned countries - The employment of an individual working from a sanctioned country is likely to be declined. However, due to the nature of the University's activities, requests in line with University strategy will need to be considered. Any request to commence business relationships or process payments in relation to a sanctioned country will be assessed on a case by case basis by the University Executive Board to ensure all risks are assessed and compliance issues addressed, and this must be done before any commitment, verbal or in writing, is given by a member of staff on behalf of the university. Further information can be found on the Finance regulations and policies webpages.
6.1 Where a Department is considering any of the circumstances as set out in the scope of this policy, Heads of Departments should contact their HR Adviser in the first instance to discuss the reasons for the overseas working, issues and costs set out within this policy. It is important that advice is sought before any commitment is given or any terms are negotiated with an existing or future employee.
6.2 If the Head of Department wishes to proceed, they must provide a business case for overseas working to the nominated approver. The Overseas Employment Request Form can be used for this purpose.
6.3 Approval must be sought from the relevant Dean or Chief Operating Officer (or nominated authority) before proceeding to pay for the specialist advice required for the external expertise (typically £5,000- £6,000 initially) using the usual non-pay spends process.
6.4 Once approval has been sought, the HR Adviser will engage with the external provider for an initial cost estimate. The Department will then lead on the process thereafter and will need to identify an individual to liaise with the employee and expert adviser. An example of the initial steps a Department would need to make (including typical costings) and the Overseas Employment Checklist are useful tools for departments to use.
|Dean of Faculty/ Chief Operating Officer
|Making the decision to employ a new staff member or to post an existing staff member to work in a non-UK country.
|Head of Department/ Head of Professional Services
|Seek advice and guidance early on in the planning stage from HR and other relevant professional services departments and/ or the relevant Dean/ COO.
Securing the funds to pay for all associated fees and running costs.
Providing resource to manage and administer the process once approval has been obtained to proceed.
|Regular review of this policy or in response to revised legislation and applicable standards and guidelines, whichever is sooner, to ensure that this policy still meets the University's needs. Such reviews will be conducted in partnership with the campus Trade Unions
Providing guidance and advice to the line manager and the Head of Department on any aspect of the Overseas Employment policy
|Employee/ future employee
|Providing information to the external adviser during the assessment stage and undertaking all steps as advised by the external adviser and University management.
This development and review of this policy will involve consultation with both the University Executive Board and the Policy Special Interest Group prior to approval and publication. Final approval of UEB on 22 March 2022.
This policy will usually be reviewed as a minimum every three years or in response to revised legislation and applicable standards and guidelines, whichever is sooner, to ensure that this policy still meets the University's needs.
9. Related documents
- The University's Remote Working Policy does not apply in these cases.
- Working overseas is defined as an employee of the University of York conducting business/work on behalf of UoY from a non-UK country.
- An A1 certificate of coverage is a certificate issued by HMRC that proves an individual pays UK national insurance contributions, thereby removing the liability of the employer and individual to make social security payments to the EU member state the individual will be working from.
- Approved on: 22 March 2022