Employee resident, ordinarily resident or domiciled outside the United Kingdom: location of duties: "merely incidental" duties: examples
Section 39 ITEPA 2003
To determine whether duties performed in the United Kingdom are “merely incidental” to duties performed overseas, it is necessary to consider both the nature of the duties performed in the UK and their relationship to the duties performed abroad.
Examples of duties that maybe “merely incidental”
Each case will depend on its particular facts but the types of activities, if performed in the UK in relation to the duties of an overseas employment, which can be regarded as “merely incidental” duties include -
- arranging meetings and business travel;
- feedback on employee performance and/or business results, if this does not involve the employee concerned in preparation or analysis whilst in the UK and as long as responsibility for these matters is not part of the employee’s core duties of employment;
- input to team restructuring and staff matters, provided that the employee does not have a management role; and
- reading generic business e-mails that do not relate directly to the employee’s role/responsibilities.
A junior employee works for an overseas subsidiary of a UK company and, on occasional visits to the UK headquarters, presents a report prepared by the overseas business to report on trade conditions or results overseas, and/or receive instructions for the next tour of duty overseas. The employee performs no other duties in the UK and has no control over the overseas activities on which he reports and is required only to pass on the report from his overseas employer and to take instructions from the UK company to take back to the overseas employer. These duties are regarded as “merely incidental” to his overseas duties.
An overseas employee visits the UK and whilst here arranges a meeting with a client overseas and the associated travel. As long as the employee does no more than arrange the meeting and travel, the duties performed are regarded as “merely incidental”.
Whilst in the UK, an employee of an overseas subsidiary receives an e-mail documenting the employer’s global business results for the year. The employee is provided with the results for his information and is not required to take any further action or feedback to the sender of the e-mail. The reading of such an e-mail is “merely incidental” to those duties performed overseas. However, if the employee had any role or responsibility in producing the global results, and/or was involved in feedback or in confirming the results, reading the e-mail is not a “merely incidental” duty.
Examples of duties that are not “merely incidental”
Types of activities performed by an employee that are not regarded as “merely incidental” duties include -
- instructions and/or guidance to colleagues and/or team members;
- work carried out on issues or projects that do not come to fruition;
- reporting on performance/business results where these matters are part of the employee’s core duties;
- analysis of reports/information with the intention to produce results/recommendations that can be reported upwards in the organisation;
- preparation work carried out prior to discussions, meetings or presentations with customers/clients, colleagues, board members or shareholders and follow-up work after such discussions, meetings or presentations;
- discussions and meetings (including by telephone, tele-conference or video conference) with customers/clients, colleagues, board members or shareholders; and
- applying generally expertise in any role or function which the employee is contracted to perform in his or her duties for the employer.
A courier for a tour operator visits many countries in the course of the employment. Visits to the UK, however few and however short, are of the same nature to the job as visits to other countries and therefore cannot be “merely incidental”.
Preparation in advance of a presentation to, and/or a meeting/discussion with, customers or potential customers, or actions subsequently which result from decisions taken in the presentation or meeting/discussion are not merely incidental to other duties, as preparation in advance and follow-up work afterwards are essential to an employee’s effective participation in a presentation and/or meeting/discussion.
A company director, who works overseas for a UK based multinational company, usually participates by video conference in board meetings held each month in the UK. However, sometimes the director visits the company headquarters in the UK and attends in person at monthly board meetings. As attendance at board meetings is a core function and fundamental joint duty of a board of directors to manage the company, attendance at a board meeting cannot represent “merely incidental” duties, regardless of the fact that the director does not normally attend the meeting in person.
A company director who is resident in the UK has two directorships within the same overseas based group. One role is as CEO of the UK subsidiary and the other as a board member of the overseas parent company. The parent company’s board meetings are held monthly in the overseas location and the director usually attends in person. However, sometimes he participates in the board meetings by telephone or video conference from the UK. As attendance at board/directors’ meetings is a fundamental and joint duty of a board of directors to manage the company, participation from the UK in the parent’s board meetings can not be “merely incidental” to duties performed overseas.
An employee of an international bank based in a city in mainland Europe, visits a UK branch of the bank. Whilst in the UK branch, the employee responds to an investment enquiry sent by email from a customer of the bank in Germany. This represents a duty of his employment in Europe and by answering the email from the UK he performs a duty that is “precisely co-ordinate” with his duties in Europe. Consequently this cannot be a “merely incidental” duty.