Hybrid Or Flexible Working - Both At Home Or Abroad

Hybrid or Flexible Working – Both at Home and in Spain

The vast majority of working practices will eventually change over time as the needs of rising industry sectors and commercial needs alter. One of the most significant changes in recent years is hybrid working of flexible working where employees work from home. Clearly this type of working can only apply to limited workplaces but it is rapidly becoming an established feature in the office based sectors.

If an employee wishes to work from home in the UK, it is generally considered that there are probably more advantages than disadvantages. Under the Employment Rights Act 1996 (as amended), employees have a statutory right to request flexible working from the first day of employment.

Employers must:

• Reasonably consider such requests.
• Consult with employees before refusing a request.
• Ensure that they respond within the statutory time limit.
• Refusal can only be made in respect of one or more of the statutory business grounds.

If an employee relocates abroad and wishes to work from another country, there are far wider factors to consider.

Employers that are considering introducing hybrid working should have a policy that their employees can review which sets out the terms and conditions that apply to hybrid working, particularly in respect of the availability, during working hours, for both parties. As well as the response times an employee should be able to achieve following a request for information or completion of a task from their manager or other colleagues.

This will avoid future disputes or misunderstandings in connection with hybrid working. The policy should clearly state which roles are suitable for hybrid working and the business needs which permit it. Employees working in the UK should be aware of whether their employer imposes a minimum number of days that they can work from home. Also, they should know whether they have to come into the office for internal meetings, training or client appointments.

In the current economic climate many employers are expanding across Europe and It is an entirely different proposition if an employee wishes to expand their experience and work abroad in a branch of their company in, say, Spain. In that event there is a raft of provisions that must be met, one of the main factors being obtaining the correct visa or work permit. A failure to obtain the appropriate compliant documentation with regard to visas and/or work permits can result in fines and other penalties for both the employee and the employer.

Visas for working or living in Spain

To live and/or work in Spain for longer than 90 days for the reasons listed below, the visa required varies.

• Digital Nomad Visa is required if you wish to work in Spain but live in the UK.
• Non-Lucrative Visa is suitable for retirees but an applicant must be able to demonstrate proof of adequate financial means, together with private health insurance.
• Work Visa is required if working for a Spanish company
• A person intending to start a business in Spain or work freelance requires a business plan to demonstrate from where your income will derive.
• Student Visa
• Family Reunification Visa for those joining relatives in Spain, rules may vary depending on your family relationship.
• Related to an EU Citizen through marriage or as a partner

The local mandatory employment rights apply, including duty of care, insurance and safely and compliantly handling of company and employee data across borders.

Another important factor that should be clarified is that the employee must protect any confidential information in connection with the business or its dealings and how this must be managed. Hybrid and off-shore working increases the potential for security risks and the employer may not be able to monitor the environment in which the firm’s equipment is being held in. Therefore, policies should include the following, to limit the potential for breaches of confidential information:

• Use secure Wi-Fi connections.
• Avoid public Wi-Fi where possible.
• Consider multi-factor authentication.
• Software should be kept up-to-date.
• Lock devices when unattended.
• Avoid printing confidential documents unless specifically authorised.
• All business documents should be securely stored.
• Comply with the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018.
• Should any data breaches occur they should be reported immediately?
• Employees should report suspicious emails immediately.

The business is still expected to comply with health and safety obligations. Also, the employee must accept that the swift return laptops and mobile phones and any other such equipment in full working order if there is no longer a requirement for working from home or when their employment ends.

Such issues such as the employees’ availability during working hours should be made crystal clear as well as their expected response time following an email, even if only providing an acknowledgement.

Giambrone and Partners’ multi-jurisdictional, multi-lingual lawyers have extensive experience in assisting British citizens who have relocated to Spain and work remotely for their employer, ensuring that all the legal requirements that are required are in place. Our London office can facilitate contact and assist you with every aspect of your move to Spain.