Now more than ever it’s imperative HR professionals understand what legislation applies to employment arrangements – including what’s permissible in screening – where the employer and employee are based in different geographical jurisdictions.
Gaining this insight is critical, because data protection, privacy, discrimination and employment law can vary significantly between different countries and states.
Failure to understand what legislation applies in a given scenario could result in litigation, or regulatory action against the employer.
Both the Covid-19 pandemic and Brexit have rendered the position even more complex.
With workers obliged to work from home during the pandemic, some have sought to make permanent arrangements to work in locations or countries other than where their employer is based.
Brexit has also had the effect of creating new ‘borders’ between the UK, EEA and the rest of the world. In some instances, employers have taken the opportunity to cast their net wider, directly recruiting workers in locations outside of countries or states where they’re established.
In these situations, employers must take into consideration all potentially applicable legislation, regardless of the jurisdiction stated in the contract of employment.
Under the relevant international conventions, the contractual choice of law should not have the result of depriving the employee of rights they would have, were it not for what is stated. Importantly, any more favourable rights afforded to the individual under their jurisdiction of residence may apply.
This potential divergence between country of contract and country of residence, must also be considered when carrying out pre-employment screening. There are no absolute maxims to resolve these issues, but the below scenario-based examples may be helpful in highlighting some of the key issues and considerations.
Permanent Overseas Home-Working Contract
A company is considering hiring an individual based in a separate country or state to where the company is established, and the intention is for the individual to work remotely from home on a permanent basis.
In this scenario it would be prudent for the company to consider any laws/restrictions that would apply to employment screening within the location the employee is based. This is because the location where the employee is based is likely to be considered the location of hire.
Temporary Overseas Home-Working Contract as Part of Business Continuity Plan
A company is considering hiring an individual, but current COVID restrictions prevent them working in the office. This has led to the individual temporarily living in a separate country or state to where the company is established, until such a time as it’s safe to work from the office.
In this scenario, although the legislation of both locations should be considered when conducting employment screening, it’s likely the legislation of the location where the employer is established will be important in determining what employment screening takes place.
Other factors that should be also be considered include immigration, and any regulatory or legal requirements relevant to the assessment of an individual in relation to a particular role. There may also be obligations particular to the candidate’s location, which will have to be addressed outside the screening process.
As always, given the complexities of overseas hiring, it’s vital employers take appropriate legal advice on all matters relating to employee contract and screening policy.
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