Global Mobility (Overseas Working Arrangements) Policy and Procedure

Global mobility (overseas working) is an intrinsic part of SOAS, University of London’s operational and strategic ambition.

Overseas assignments commonly arise because of a research award/grant, with a named researcher stated in the grant proposal, or are proposed by the individual for academic or personal reasons. As the School seeks to be recognised as a research-intensive institution, working in an overseas location for research purposes will become increasingly relevant.

This policy is designed to support School staff working overseas and ensure that the risks that international working poses can be mitigated. The policy also supports departments and directorates in making informed decisions when sending employees overseas or choosing to support employees working internationally.

For information on short term overseas travel on behalf of the School including overseas travel safety and security, terrorism, accident reporting, insurance, and general health advice, employees should refer to the Overseas Travel Policy.

Scope of Policy and Procedure

This policy is for employees, managers, directors of professional services, heads of department, heads of college, Research, Finance, academic administration, and HR.

It has been written to:

• set out the School’s position on overseas working including the key statutory and organisational requirements, where this is initiated by the School or an individual staff member
• Ensure members of staff, their manager and department understand and carry out their responsibilities on behalf of the School with any plans for working overseas
• provide a framework for authorising and implementing agreed overseas working and to ensure that the administrative processes and procedures involved in relocating and/or employing individuals across international boundaries are clearly set out
• communicate the consequences of non-compliance or financial liabilities and penalties in relation to international working, specifically in the areas of tax, payroll obligations, social security, insurance obligations, employment or other relevant legislation and immigration
• confirm that failure to comply with the statutory and organisational requirements could be considered to be a disciplinary matter and may lead to consideration of termination of employment

Overseas Working

The term overseas working typically encompasses, although not exclusively, staff working for more than 1 month: in foreign universities, either off or on campus; carrying out research in the field; teaching; paid research leave; and working from home where their residence is abroad. This list is not exhaustive.

The School has a statutory duty to submit a return to HMRC for anyone who spends more than 183 days out of the UK in any year. This means the School need to keep records about people who are living or who are working overseas. The time counted includes time on annual leave as well as working days.

Before any overseas working arrangement can commence, approval must be sought and granted from the Provost/Deputy Director or the Chief Operating Officer, as directed by the policy. Written approval should be obtained a minimum of 90 days before the arrangement is due to commence in order to allow the department to take the necessary steps to ensure compliance.

Line managers retain their duty of care for staff working or travelling overseas. If managers are considering employing staff based overseas or posting an existing member of staff on an overseas assignment, they should contact their HR Business Partner as soon as possible. They will liaise with other specialists (both internal and external, as required) to ensure that managers are provided with the appropriate advice and guidance. It is important to emphasise that overseas working must be authorised in advance and if approved, planned, and carried out in a compliant and cost-effective manner.

Business Travel

Staff that undertake business travel should familiarise themselves with this policy and report to their Head of Department or Directors of Professional Services any business travel lasting more than 1 month, or if they travel frequently (5+ times a year) for less than a month each time.   

Business travel applies to:

• Official Business - Travelling on official business trips for activities such as conferences, meetings, attending seminars & lectures, whereby staff are representing the School.  This also includes research work conducted outside the UK arranged through the School.
• Unofficial Business - Travel where the host organisation invites staff to attend an event and pay for their travel and they are not formally representing the School.  Unofficial business is covered by these guidelines depending on the activity and if this is perceived as representation on behalf of the School by the host.  In these cases, staff are acting in the interests of the institution and carrying out the normal expectations of their role and need to report their time working overseas. 

Risks and liabilities

Under the Corporate Criminal Offences (CCO) legislation, Criminal Finances Act 2017, the School would be strictly liable were any of their associated persons (including employees) to criminally facilitate the evasion of tax in the UK or overseas.

The School could face unlimited fines if a person associated with it has, even unwittingly, enabled or facilitated tax evasion. A successful prosecution could also lead to a public record of the conviction resulting in significant reputational damage and adverse publicity.

There are risks associated with tax and social security payments that need to be made in overseas countries by individuals and in some cases the School (including from day 1 in some cases); visa and immigration issues with staff working overseas where they do not have the right to do so (especially following Brexit); risks associated with intellectual property with access to the School’s network through local IPS being used by staff to access the School from overseas; and having an employee working overseas may inadvertently create a permanent establishment status for the School in that country which will lead to further financial costs and liabilities.

The School must make proper legal and financial/tax arrangements for staff working overseas, if not, the School may face fines for not declaring the presence of staff working in these countries or for delays on meeting employer obligations. In some countries, the School may need to set up a local pay bureau (this will have costs associated with each depending on each country).

An example of potential costs includes the need to pay employer social security in overseas countries; this is 11.3% in the UK, and up to 40% in some countries.

Staff working Overseas for the School

Overseas initiatives can lead to increased risks and costs to both the member of staff and to the School if not planned properly, for example, disputes with collaborative partners, legal challenge from staff and students, regulatory action from overseas authorities and reputational damage to an institution’s global brand. HR and Finance Business Partners should be notified at the earliest opportunity within the planning stage, i.e., at the point of applying for a grant or when a resource requirement is identified and will involve overseas working.

Due to the complex nature of compliance obligations for employees working overseas, heads of departments or directors must ensure that all the relevant legal/financial obligations and costs have been considered at the planning stage, that advice is sought where required, before approval for the proposed overseas working arrangement is sought. No agreement can be legitimately made with the employee or candidate without these steps having been taken and written approval gained.

The terms of any research grants or external funding linked to the individual/project should be checked as it may be possible to use this funding to cover the cost of external advice or other overseas assignment costs. The grant may also be used to reimburse other employee costs directly linked to the overseas assignment (such as tax filing, accommodation, etc.) or provide additional cash allowances. However, it should also be noted that an existing grant may no longer be valid if the employee is working overseas for a significant period, so this should also be verified.

Any additional costs incurred by the School will be borne by the department or directorate the staff belongs to. Sometimes these costs may be borne by the research funder.

Staff who are due to work abroad for the School should work with their Head of Department (HoD)/Head of College (HoC)/Director of Professional Services (DoP) (or another colleague of appropriate seniority who will work with them) to ensure that risks have been properly assessed and that there is sufficient budget to meet related costs including, but not limited to, seeking financial/tax advice, additional insurance, tax and social security, local payroll bureau and personal expenses. The appropriate manager will act as the primary point of contact should the individual have any concerns or questions for the duration of their work overseas.

Staff and managers are encouraged to view the latest travel advice for countries at www.gov.uk/foreign-travel-advice. This essential travel information is regularly updated and can rapidly change.

This policy should be read in conjunction with the:

• Overseas Travel policy
• The School’s insurance webpage
• Health and Safety Policies
• Modern Slavery Statement

Staff Living and Working Overseas for Personal Reasons

Our standard terms and conditions of employment are subject to England and Wales employment law and as such, all our employees are expected to work in the UK territory. This means that working overseas (i.e., outside the UK) is not permitted unless this is directly connected to their work and is reviewed, approved, and managed appropriately. This includes working remotely from outside the UK (See appendix 2).  

The School recognises that there may be circumstances where people may need to work overseas for personal reasons. Staff wishing to live and work overseas for personal reasons should first discuss the proposed arrangements with their line manager and HoD/HoC/DoP. Staff who would wish to work overseas for personal reasons should then apply formally under the Flexible Working Policy. All requests to work from overseas for personal reasons must be authorised by the Provost (for Academic staff) / Chief Operating Officer (for Professional Services staff). Where a review of the arrangement is required as part of a new contract, a contract renewal/extension, the Provost / Chief Operating Officer (as appropriate) will be required to review the request and authorise the arrangement. All decisions on overseas working may depend on business interests of and the costs to the School.

Approved requests will only be granted in exceptional circumstances and will be for a time-limited period, usually no longer than 12 months. If agreed, the arrangement should be reviewed on a regular basis, including upon renewal or extension of a contract. The arrangement cannot be automatically continued because of a contract or funding renewal/extension. The number of requests to work from overseas for personal reasons will be reviewed at EB on a regular basis.

There are important considerations including the potential impact of staff working overseas for personal reasons on service delivery, team cohesion, student experience, and contribution to internal and external citizenship and the wider School community that should be considered when reviewing applications to work from an overseas location.

Where it is agreed, it is important to note that School staff working overseas for personal reasons will be personally liable for any local tax payments, and employee social security or other similar payments, which may be incurred whilst based overseas. Staff should be aware that such payments are staff members’ personal responsibility, and the School cannot indemnify them against any such payments.

Any additional costs incurred by the School will be borne by the department or directorate the staff member belongs to. Sometimes these costs may be borne by the research funder.

Where identified, unauthorised working overseas will be reviewed on a case-by-case basis and would usually require consideration under the disciplinary procedure which could result in disciplinary action.

The timeline of a Flexible Working Request will be affected by the consideration for overseas working where applicable; in certain instances, an extension may need to be agreed with the employee if there are complex additional steps that require completion with respect to working overseas before the request can be considered for approval.

The Provost (through the HoC) / Chief Operating Officer will only grant permission for the overseas arrangement if they are assured that all risks and liabilities can be appropriately managed, and all associated costs can be justified.

As noted above, if the trip is for less than 1 month and does not constitute a combined period of travel greater than 90 days within the tax year, this will normally be considered business travel. Please refer to the Overseas Travel Policy for further information.

Arranging Overseas Working

The HOD/manager/principal investigator should complete the Overseas Working Initiation Form (Appendix 3) and send it to their HR Business Partner who will make an initial assessment of the viability of the request.

If the request meets the criteria in the initial assessment, the HR Business Partner will provide the Department/Directorate with advice and information, including:

• Analysis of the various implications of the overseas working case
• Risk analysis
• Cost estimates

The HRBP will also inform the Department/Directorate if external advice should be sought.

If the request is fully approved by the Deputy Director/Provost or Chief Operating Officer following the provision of the advice, the HRBP will support the Department/Directorate in its implementation.

APPENDIX 1 – POTENTIAL IMPLICATIONS OF LIVING AND WORKING OVERSEAS

Income Tax & Social Security

Staff working in the UK usually have PAYE Income Tax and National Insurance (also called Social Security) deducted from their pay by their employer. When staff are sent to work overseas this may affect their tax and social security obligations. The area around tax liability and social security is complex and country and person specific so specialist advice will need to be obtained.

Some foreign governments, such as China and Russia have linked immigration and taxation systems which can detect when migrant workers are not paying tax. This could result in the School and/or the staff member receiving a letter, fine, or in some circumstances, a criminal conviction and jail sentence.

School Obligations – UK

When working overseas the School will continue to deduct PAYE/NIC. Staff who believe that this is incorrect should contact HM Revenue & Customs (HMRC) to discuss their circumstances. If HMRC believe that PAYE/NIC deductions should stop, they will automatically issue the School with a tax code which stops the deduction of PAYE.

School Obligations - Overseas

The School can stop making UK national insurance deductions if the overseas social security department issue the appropriate certificate of coverage. The School will then need to establish regular payments to the overseas authorities. This process can take considerable time and in practice may be applied retrospectively. For this reason, staff will be advised to withhold earnings in line with the social security % of the host country to avoid unexpected, backdated costs.

If the work is taking place in a country with high employer social security contributions, this will result in a higher cost base for the School. It is therefore important that these costs are factored in grants and business cases up front.

Under the Criminal Finances Act (2017), the School is duty bound to seek assurances that staff are paying tax in the correct jurisdiction. If the School suspects that this is not the case, the staff member may be required to provide evidence of their tax returns and could be subject to disciplinary proceedings.

Staff Obligations – UK

Whether or not the School has deducted PAYE and NIC, staff remain responsible for ensuring that they have paid the correct amount of Income Tax for each tax year. If there is any uncertainty around this, the staff member should contact HMRC.

Where social security and income tax needs to be paid is determined by legislation. Staff are not allowed to choose where income tax and social security contributions are made. Apart from opting to continue paying voluntary national insurance contributions at the lower rate. The School’s HR Payroll and Pensions team can provide information and assistance on the School’s usual practices in particular situations but cannot provide professional advice. The School strongly recommends that staff members seek their own independent advice, including an assessment of their tax residency and associated filing obligations.

Staff Obligations – Overseas

This guidance cannot cover the tax and social security rules in every country that staff might visit. As a general rule, the longer a member of staff works in a country, the more likely it is that they should pay tax in that country. Most arrangements in countries that have an agreement on the prevention of double taxation generally allow UK income tax to be deducted for the first 182 days in a 365-day period and then the host countries income tax from day 183 onwards. Teaching activities might be taxable from day one and may also create equivalent corporation tax and VAT for the School if income is received for the teaching activity. Staff should familiarise themselves with information which can be found on the gov.uk.

It is important to note that the School has an obligation in the UK to operate PAYE and deduct National Insurance. This is separate from a member of staff’s obligation to pay UK Income Tax (via a tax return if appropriate) which may arise whether or not the School has operated PAYE/NIC. A tax liability overseas may arise whether or not the School is deducting money from the staff member’s pay. Outside of the UK most countries require by law that residents and non-residents file an annual income tax return. Some countries have a requirement to do so, even if no tax is due, sometimes called a nil return.

Failing to correctly pay taxes in some countries may affect an individual’s ability to enter and leave that jurisdiction. It is the member of staff’s responsibility to ensure that they investigate and ensure they meet any tax obligations in the country they are in, as well as checking whether they will be liable for taxation in the UK and the foreign nation/state. Please find Information on UK tax treaties. Staff members will be responsible for any tax payments which may apply in the relevant overseas country and will keep the School fully indemnified against any such liabilities, including any penalties, interest and costs. Where a withholding obligation arises on the School, these sums will be withheld from payments made to the staff member.

Some countries have partially devolved tax systems, which require staff to make income tax payments to the Federal tax authority, state/province/canton authority and municipal authority. Church tax is also commonplace across European countries. Tax treaties cover federal taxation but doesn’t always cover state or municipal taxation. Each arrangement will require an assessment to identify statutory obligations.

Staff may be required to make social security contributions in the host nation, either instead of national insurance or as well as national insurance contributions in the UK. The UK has several social security reciprocal agreements to avoid a member of staff and the School having to both pay social security in the UK and abroad. The coverage of social security agreements with other countries in the World is c. 23%.

Protection from social security deductions in the UK and the host nation of the same earnings can be obtained by applying for an A1 certificate or a certificate of coverage (country listed in the reciprocal agreements).

Staff are advised to keep a diary of days spent in each country for the time spent overseas. The more accurate time spent in each location is recorded, the easier it is to get concessions from tax for time spent outside of a jurisdiction. Weekends should also be included, as many tax authorities count weekends in their calculations.

Whilst it is usually possible for a credit to be claimed for taxation suffered overseas, this may initially lead to a dual income tax liability. This situation would most likely occur where UK tax residency is not broken, and it is important to note that foreign taxes will not reflect UK rates.

Employment Rights

Staff working overseas may gain or lose employment rights based on the legislation of the country they are working in and their individual personal circumstances. This includes the impact of Brexit and Covid-19 on current working arrangements.

As a general rule, employment law and employment rights applicable to overseas working are based on the employment law of the land in which the work is taking place. The School where possible will look to continue contractual terms and conditions in the UK. Where legislation is more beneficial or prescribes that organisations cannot provide more, the HR Team will need to issue a contract addendum which clearly states a variation in contractual terms.

The School may have a legal requirement to issue a contract in the language of the host nation or in the native language of the employee. This is likely to require planning and additional cost in requesting the contract translation from a third-party supplier. This additional cost should be met by the Department where it is an overseas assignment. For example, a contract in Belgium needs to be issued in the regional language which could be Dutch, German or French depending on the location. Many Middle Eastern countries require Arabic contracts to be issued.

Some countries require foreign organisations and/or workers to establish a subsidiary organisation or incorporate in order to provide a service or trade. This can create corporation and VAT liabilities for the School. If the member of staff is teaching, there is a higher-than-average risk of a taxable presence being created. Such an arrangement should not be entered into lightly and will require consultation with HR, Payroll, and Finance and approval by the Executive Board, which may make the work unviable.

Pensions

Staff who are considering working overseas for personal reasons must seek pension’s information from the School’s Payroll & Pensions team and the relevant pension scheme provider before arrangements are finalised. The eligibility for joining or continuing to pay into the School’s pension scheme providers (USS and SAUL) for School employees working overseas will be subject to pension scheme regulations, and dependent on a number of other factors.

The School cannot guarantee membership to the School’s pension schemes for employees working overseas for personal reasons. It is important staff seek advice and guidance on pension matters before arrangements for working overseas for personal reasons are agreed. Pension scheme regulations are subject to change from time to time.

Staff sent to work abroad will continue to have USS or SAUL pension contributions taken from their pay unless they take action to leave the pension scheme, or they become ineligible for the pension scheme.

Insurance

Staff are only covered by insurance if the member of staff or appropriate manager completes an online travel insurance application. If staff are unsure whether the personal travel insurance covers the overseas arrangement, check the insurance details on the web page at the earliest opportunity to check whether adequate insurance is in place or whether additional cover is required.

Travel Insurance is available via the School but only for those travelling from the UK and returning within 6 months, although cover can be extended in some circumstances. For more information visit the School’s Insurance webpage.

Staff planning to work outside of the EU may require additional local insurance in the country of placement. The cost of this additional insurance will need to be met by the Department or the individual depending on the circumstances.

Other Important Considerations

Other important considerations for staff working overseas for personal reasons include but are not limited to the list below (which is not exhaustive):

• It is the responsibility of the staff member based overseas for personal reasons to contribute to the wider academic life of the School in a similar way to London-based staff. For academic staff, this includes appropriate consideration to the School’s Academic Performance Framework (including Academic Citizenship).
• Before any request is approved, management and staff should give appropriate consideration to the potential impact on service delivery, team cohesion, timetabling, and student experience, whether the approval of the arrangement will set a precedent in the team/department, contribution to internal and external citizenship and the wider School community.
• Staff are expected to regularly attend the School’s London campus (at their own expense).

Further Advice

From time to time, it might be appropriate staff members or for us to engage with third party organisations specialising in international mobility, taxation, employment law, insurance, and health and safety due to the complex nature of access and working in some countries. As engagement with these third parties can be quite a lengthy process, extra time should be factored in at the planning stage.

APPENDIX 2 - REMOTE WORKING DURING THE CORONAVIRUS PANDEMIC

The School recognises that as a consequence of the Coronavirus pandemic, many employees were working at home. While working at home is permitted in the UK, it is not permitted outside the UK. This is because most countries, like the UK, expect employers and employees to pay tax and social security in the country where employees are physically working (even from a personal home address). Failing to comply with the local employment regulations may result in claims for back taxes and fines from the local authorities, both for the individual and the School. Access to health care may also be affected and, if staff are not a national of the country, it may also be a breach of immigration rules for them to work there. To minimise this risk, the School’s position is that remote/homeworking is only permitted within the UK territory (unless there is prior written agreement and appropriate payroll, and immigration requirements are in place).

If staff are normally living and working in the UK, a short period of remote working as a consequence of travel restrictions imposed by the pandemic may be permitted. However, to fulfil its duty of care it is important that the School is aware of where staff are working and can decide on what action is appropriate in each case. Colleagues should be aware that if they are unable to return to the UK after a personal overseas trip then they may not be able to work remotely from outside the UK and they should make alternative arrangements to return to the UK at the earliest opportunity. The School will always do its best to protect its employees but in some cases where the risk is deemed too high for the staff member and the School, it may be necessary to place the staff member on unpaid leave. If a staff member is currently working outside the UK, they should advise their Head of Department or Director of Professional Service (if they are not already aware) at the earliest opportunity.

If it is a new staff member living outside the UK and travelling to the UK to commence their employment, their start date will be delayed if Coronavirus restrictions prevent them from travelling unless the School are able to make alternative arrangements for tax and social security to be deducted in their home country. They should not start working remotely until they have received written confirmation from HR and have provided satisfactory evidence of their right to work in that country.

Appendix 3 – OVERSEAS WORKING INITIATION FORM

OVERSEAS WORKING INITIATION FORM 

This form should be completed by line managers, principal investigators (PIs) and Heads of Department, to outline details of new overseas working arrangements. 

This information will enable the School to undertake an initial assessment of potential tax and social security risks associated with overseas working.