Seconding an employee abroad

Q I am thinking of seconding an employee abroad, what sort of issues do I need to consider?

A There are various issues to be considered. The first issue is that in almost all cases, the employee’s consent to go on secondment will need to be obtained by the employer. It may then be necessary to obtain a visa or deal with other immigration requirements. There will be tax implications and advice will need to be sought in relation to which country tax will be paid in, and where social security will be paid.

The employer should consider how long the secondment will last, what terms and conditions will apply during the secondment, and whether it will be possible for the worker to keep the same benefits when seconded abroad. It is usually possible for an employee who is seconded abroad to continue contributing to their UK employer’s pension scheme, but other benefits, such as healthcare, may change.

Q Who has responsibility for the seconded employee?

A This must be dealt with in the secondment agreement. The worker will usually remain employed by the UK employer, but be seconded to work for the overseas company. Their day-to-day activities will usually be directed by the overseas company but the employer will retain the power to dismiss or discipline.

The employer will also be responsible for grievances and salary reviews, although if the employee is to be seconded abroad for some time, holiday requests are likely to be dealt with by the overseas company. The employer may, if it chooses, delegate responsibility for these activities to the secondee.

Q Does the employee’s duty of loyalty to the employer continue during the secondment?

A Yes. The employment relationship along with the duty of loyalty still exists. As the worker remains employed by the company in the UK, there may be issues regarding ownership of intellectual property created during the secondment and confidential information concerning the overseas company which the employee becomes aware of.

These issues should be agreed between the parties and documented before the secondment. Where the secondment agreement varies the contract of employment and creates obligations between the worker and the overseas company, the employee should be a party to the agreement.

Q What happens on termination of the secondment?

A On termination of the secondment, the employee will usually return to the UK to resume work with their employer. They may have been abroad for some time, and there may no longer be a position for the employee back at home. In these circumstances, they may be made redundant.

So the secondment agreement should clearly state what will happen to the worker on their return. The company should be careful not to promise their return to their old position, as this may not always be possible.

Q I am considering seconding an employee to France. Will the Posted Worker Directives apply?

A Yes. It applies where an employee is sent temporarily by an employer established in one member state (the ‘home’ state) to work for a company established in another member state (the ‘host’ state). The directive requires the company in the host state to apply (as a minimum) certain terms and conditions (as established in the host state) to staff on secondment.

The minimum conditions cover working time, annual holidays, rates of pay, health and safety and equal treatment. This means that a worker seconded from the UK to France would have a 35-hour working week, as this is the maximum working week over there.

If the terms and conditions of employment in the host state are less favourable than the terms and conditions in the home state, then the directive allows for the more favourable terms and conditions to be applied. If there is any dispute as to the applicable terms, the directive also allows for the dispute to be resolved by a labour court in the host state.

Q What happens if the employee is dismissed while working abroad? Would they be able to claim for unfair dismissal in a UK employment tribunal?

A Yes. An employee would be able to bring a claim for unfair dismissal in the UK regardless of where in the world the employee has been seconded to. The exclusion of the right of employees who ordinarily worked outside Great Britain to claim unfair dismissal was abolished in 1999.

As a result, the right of an overseas worker to claim unfair dismissal has been determined through case law.

The current position is that where the employment abroad has a substantial connection with the UK, the employee can bring a claim. As the employee continues to be employed by the UK company, this is likely to be a substantial connection.

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