The coronavirus pandemic and, above all, the strictures associated with it, contributed to the fact that the working model of the labour market changed irrevocably. It quickly became apparent that remote working was possible in many industries, especially for office workers. It can also be noted that the popularity of this working model has had a significant impact on increasing employee mobility. It is not only about doing work from a location other than the workplace or the city of the entrepreneur's headquarters. Employees are increasingly going one step further and deciding to perform work from outside Poland. However, is this legally permissible? What does remote working from another country mean for the employer and what does it entail for the employee?
Details below. I invite you to read on.
Legal nature of remote working in the light of current legislation
The Anti-Covid Law and, more specifically, the Law of 2 March 2020 on Special Arrangements for the Prevention, Prevention and Control of COVID-19, Other Communicable Diseases and Emergencies Caused by Them, introduced a provision that states:
"During the period of an epidemic emergency or a state of epidemics declared due to COVID-19, and for a period of 3 months after their cancellation, in order to counteract COVID-19, the employer may instruct the employee to perform, for a limited period of time, the work specified in the employment contract, outside the place of its regular performance (remote work)."
Accordingly, the decision to outsource remote working to an employee remains at the discretion of the employer. As these regulations were introduced due to the epidemic state, they do not specify the guidelines for remote working. Including that they do not limit the employee's stay to a specific location.
This loophole in the law therefore gives the employee the possibility to decide for himself where he will do the work. Consequently, it can be concluded that the provision of remote work from abroad is possible. However, it should be borne in mind that this issue may involve a number of difficulties for the employer, as discussed below.
Remote working from another country - implications from the employer's perspective
The employment of employees working remotely from another country can significantly affect the legal position of employers. This involves not only modifying the relationship with the employee himself, but also with state authorities. The changes may concern in particular:
- the jurisdiction of the courts that will resolve disputes between the employer and the employee,
- taxation rules (including the taxation of income earned by the employee),
- employee's social security contributions.
An employee who has chosen to work remotely from another country on an occasional basis should not cause major problems for the employer. However, a number of obligations may arise when the employee permanently resides in another country.
A thorough analysis of any double taxation treaties may then be necessary. This may also apply to EU mechanisms for the coordination of social security schemes (if the employee is resident in one of the EU countries).
Being aware of this, the employer should take proper care of the formalities related to the employment of an employee working abroad. A desirable action, which will certainly allow him to avoid negative consequences related to such a situation, is the construction of appropriate provisions in the employment contract. These should specify whether the contract concluded by the employer - based in Poland - will be governed by Polish or other law.
However, one should be prepared for the fact that some issues will only be decided by the authorities of the country in which the employee resides. This therefore means that the employer will have no influence on the jurisdiction of the law.
Attention!
If the employment contract does not indicate the applicable law, it may be that the contract in question is governed entirely by the law of the country in which the employee is working remotely (Article 8(2) of the so-called Rome I Regulation). The employer will then, in principle, be subject to all obligations under the labour law of the other country in which the employee is based.
Social security contributions
However, with regard to issues of social security affiliation, these are governed by the internal regulations of the individual states. In the case of the European Economic Area, EU rules on the coordination of social security systems apply, which harmonise these issues on a transnational basis.
At this point, it is also worth noting that an effective and timely exchange of social security information is accompanied by the modern EESSI system. You can read more about it in this article: EESSI - Electronic Exchange of Information System.
Remote working from another country and employee obligations
The employee's obligations resulting from remote working in a country other than Poland are far fewer. Here I would like to discuss an aspect that raises many doubts in practice. The issue is whether the employee is obliged to notify the employer of the location of the remote work.
Unfortunately, the law does not regulate this issue precisely. A lot will depend on the form of the remote working instruction that the employer gives to the employee. Nevertheless, I believe that if we want to be honest with our employer, we should inform him of the place where the work will be performed. All the more so if it is going to be outside the country - occasional or permanent.
Summary
Sending an employee to perform remote work outside Poland is currently the most feasible solution. However, it should be borne in mind that such a solution may be burdened with the risk of many formalities for the employer. Both those of a purely organisational and financial nature.
In conclusion, for my part I can say only that at the moment there are no permanent legal regulations for remote working in Poland. I would like to reiterate that its implementation is only possible under the so-called anti-covid law. Therefore, these regulations can be called uncertain, and the legislator can abandon them at any time. Although there is a lot of talk in the public space that remote working will soon be regulated by law, through an amendment to the Labour Code, the exact date is still unknown.
As always, I will keep you informed of any developments in this regard.
