10 May 2021 
Ruth Turner, Membership Officer
One of the many new issues the COVID-19 pandemic has presented for the HR community in higher education is the question of whether they can require employees to be based in the UK, writes Bob Fahy, Partner at VWV Higher Education. With remote working becoming ubiquitous in the sector since the introduction of the first lockdown, and the Government's guidance that employees who can work from home should do so likely to remain in place until at least July 2021, careful thought needs to be given as to how a university justifies any policy requirement to be based in the UK.
In an earlier VWV poll of university HR managers, we asked 44 HR managers from 33 universities whether their institutions had any requirements for staff to be either:
In both cases we asked whether there were such requirements in either:
The level of uncertainty reported was striking. 17 of the individual delegates didn’t know whether there was a requirement to be resident in the UK and 13 didn't know whether there was a requirement to be present on campus. At three of the universities, conflicting answers were given, with one HR Manager responding that there was a requirement but another from the same university saying there was not.
At an institutional level, we found the following results:
Probably the most obvious potential legal risk from a requirement of UK residence is that it is likely to amount to a "provision, criterion or practice" for the purposes of an indirect discrimination claim. It should be relatively easy for a non-UK national to demonstrate a disadvantage to someone of their nationality compared to a UK citizen. Once demonstrated, the focus would then to the question of objective justification. Given that nationality is part of the definition of race for the purposes of the Equality Act 2010, such a PCP would amount to indirect race discrimination unless objectively justified.
Of course, objective justification arguments are necessarily fact-specific. Each university will have its own particular aims when using such a policy. However, there are likely to be a number of areas of common ground. Some legitimate aims may include avoiding additional legal obligations and complex financial and tax arrangements arising from an employee's residency in another jurisdiction as well as the risk of creating an establishment for trading purposes in a foreign jurisdiction, and the need to avoid potentially costly advice from lawyers and accountants qualified to advise in the relevant jurisdictions. There may also be practical issues about the delivery of teaching and/or research remotely, although that argument may now be harder to make after a year of remote working for many.
The aspect of objective justification which employers often find more difficult to establish is that their PCP is proportionate. This is often because little thought has been given as to the impact of the policy on potentially disadvantaged groups and whether there are less impactful ways of achieving the legitimate aims. A careful review when the policy is being proposed should lead to a reasonable conclusion that it is indeed proportionate and that the policy is therefore objectively justifiable. However, that exercise becomes more difficult in hindsight.
We will be considering this and more on 13 May 2021 in our discussion of Attracting, Managing and Retaining a Thriving International Workforce, at the UHR Annual Conference.
For specialist legal advice on the above, please contact Bob Fahy in VWV's Higher Education team on 07500 686163 or bfahy@vwv.co.uk.
Join the team from VWV at #UHR21: Refreshing HR
Thursday 13 May, 9.15am
"Attracting, Managing and Retaining a Thriving and Diverse International Workforce" with Jane Byford, Bob Fahy and Tom Brett Young (Partners, VWV)
