With the increasing demand for many industries to cater for cross-border markets, more and more UK employers are requiring their workforce to be mobile not only nationally but also across Europe. When posting staff in Europe though, UK employers should be aware of their obligations both from an employment and immigration perspective.
The EU implemented the Posted Workers Directive (PWD) on 16 December 1996. The Directive lays down the key rules that apply when workers are posted from one undertaking within the EU to another.
The PWD will only apply to employers established in a member state and in situations where they:
- Have a contract to provide services to an undertaking in another member state and, pursuant to that contract post workers to that other member state
- Where an intra-company transfer takes place within the same group of companies and that employer posts a worker to another member state within the same group
- Or a temporary worker agency posts workers to another member state.
Employers that fall within the above categories and are based in a member state should incorporate a provision into their employment contract which informs the employee that they may be sent to another member state where this may be more than a month and employees should be made aware of the currency in which they will be paid whilst abroad.
In addition, the posted worker must meet the requirements of a worker under the law of the member state to whose territory they are posted and must be carrying out work for a limited period other than the state in which they normally work. A limited period includes secondments and trips abroad where productive work is undertaken. If the parties intend for the posting to be permanent, this would fall outside the PWD.
Rights of employees posted to Europe under the PWD – Employment considerations
The PWD provides that where workers are posted to perform temporary work in member states, those workers should enjoy the same minimum protection available to other workers employed in the host country. This includes such matters as maximum work periods, minimum paid holidays, minimum rates of pay, health and safety and hygiene at work, and protective measures for pregnant women or those who have recently given birth.
It is imperative to comply with these minimum rights as otherwise there may be financial penalties for breach as well as reputational damage and commercial losses where work cannot be carried out due to the breach.
Future of PWD
A compromise draft of a new enforcement Directive was agreed on 27 February 2014. This new enforcement Directive follows a recent calling to reinforce inspections and stiffen the rules on secondment and posting after a series of European Court of Justice decisions highlighted the conflict between single market economic freedoms and workers’ rights under the PWD. A compromise was reached on two outstanding issues, namely national control measures and joint and several liability in subcontracting claims, the latter being particularly relevant to the construction industry. French law firm, Lexcase has examined the effect of these new measures in the article, ‘Posted Workers and ‘Social Dumping’ – France is ahead of Brussels‘, most notably because the socialist French parliament put forward a new draft legislation intended to implement the terms of the enforcement Directive in advance of it coming into force.
Free movement in Europe – Immigration considerations
The Schengen area represents a territory where the free movement of persons is guaranteed between EU member states which is why member state citizens have free access to employment in the other member states. Workers from non-EU counties are required to hold a visa when travelling to the Schengen area. Generally, a short stay visa issued by one of the Schengen states entitles its holder to travel throughout the Schengen area for up to three months within a six month period. Visas for visits exceeding that period remain subject to national procedures. The procedures and conditions for issuing visas for the purposes of short stays and airport transit are set out in the EU Visa Code.
The road to free movement is not always quite as straightforward though. A recent referendum has been implemented in Switzerland in an attempt by the conservative-nationalist Swiss People’s Party to limit the numbers of immigrants to Switzerland. This included a demand to renegotiate and restrict the terms of the free movement of persons agreed with the EU. German law firm Goerg, commented that it is impossible to predict what effect the referendum will ultimately have in practice on free movement and thus the employment of Swiss citizens in the EU and EU citizens in Switzerland ‘Against mass immigration’ – Swiss Referendum Limits the Free Movement of Persons’.
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