Brexit continues to impact UK nationals nearly four years after implementation, especially when it comes to travelling to the EU for work purposes. Immigration lawyer Harry Goldstraw examines what employers need to consider when posting employees on short-term European work assignments.
With the end of free movement, British nationals can no longer travel to the European Union unimpeded and must consider the individual country rules for each EU member state rather than viewing the EU as a single body. While British nationals do not need to apply for a visa to travel for business, work permits are required for working in Europe. As such there are now myriad rules and requirements that must be assessed before travelling for short-term work in Europe.
Permitted work activities
As a general rule, most EU 27 countries permit basic business visitor activities, such as meetings or receiving training, without the need for a work permit. It is only when substantial work activities, for example when someone is performing their day-to-day job duties, that a work permit may be required.
However, the specifics of what activities are permitted as a business visitor and, crucially, how long you can work while overseas, vary greatly from country to country.
A one-size-fits-all approach is not suitable for assessing when someone is a business visitor and when a work permit is required. For example, a British national can travel to Lithuania to install equipment or negotiate and execute a contract, but travelling to Germany to do the same activities would not be permitted under German business visitor rules.
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In addition to rules for business visitors, many countries also have specific work permit exemptions for short-term workers. These exemptions permit activities, that would otherwise require a work permit, to be conducted as an exception to the rule.
Work permit exemptions are typically restricted to a particular activity, sector or time period. For example, Bulgaria has exemptions for the shipping industry, and Estonia has a limited exemption for stays of up to five days.
Work permit exemptions may offer an alternative route to short-term working in the EU but, as the exemptions are not uniform across all 27 countries, employers need to be careful that the specific exemption applies to the specific country their British employees are travelling to.
In addition to what activities are or are not permitted, most countries do not operate a di minimus rule, allowing for any work activities if the trip is under a certain duration. As such, even if someone is only travelling for one day, a work permit may be required.
While many companies operate a minimum threshold for obtaining a work permit (for example, all travel under 10 days is regarded as business travel regardless of the activity), this can result in employees travelling incompliantly and potentially working illegally.
Employers need to consider the individual country’s impact and risk. Penalties for non-compliance vary greatly across the EU and what may be low risk, resulting in a warning in one country, could result in an employee being banned from a country ban or restrictions on sponsoring workers in future in another country. As an example, both Denmark and Croatia are known for having high levels of enforcement action, and fines or suspensions are commonly imposed.
Posted worker notifications
Even if the activities are permitted under a work permit exemption or as a business visitor, employers need to consider if there is a requirement for posted worker notification (PWN) requirement in the country they are visiting.
While technically a labour law requirement rather than immigration compliance, PWNs apply to individuals posted to work overseas while remaining employed by their home country employer.
Like short-term work, the requirements and filing process of a PWN differ from country to country requiring employers to be aware of the specific requirements and application process.
Typically PWNs also require there to be a representative or contact in the country to liaise with the relevant authority on audit.
Furthermore, PWNs can apply when an employee visits a client site and can be requested by the client contact. Given this provision, it is crucial that UK employers know how and when to file PWNs where required, as well as what responsibilities they may have in the relevant European country.
Social security
While outside the traditional sphere of immigration compliance, employers and employees must be aware of social security and A1 certificate compliance that are part of the overall assessment needed to ensure a risk-free trip.
An A1 is a tax document that shows the British employee should be covered by UK national insurance rather than European social security during their trip.
Many PWNs require an employee’s A1 certificate to be on file and non-compliance of PWNs can trigger an audit of associated A1 certificates. Furthermore, as it can take several months for A1 certificates to be issued by HMRC, planning is essential to ensure that employees have the right documents in hand when travelling.
Companies who fail to secure this area of compliance not only face potential financial penalties for not having the right documents but also potential double social security payments which can be significant.
Schengen requirement
In addition to country-specific permitted activities, PWN requirements and A1 compliance, businesses must also consider the 90-day Schengen requirement.
The Schengen area covers 27 countries across Europe – of which some cross over with the EU 27 but not all – and permits British nationals to spend 90 days in any 180-day period within the Schengen area. This 90-day limit applies for all purposes and to all countries across a rolling six-month period, and as such, those who travel frequently for business and/or pleasure need to ensure they do not go over their limit.
Those who exceed the 90-day limit may be turned away at the border and not permitted to enter any Schengen area country until the 180-day period has elapsed. Travellers will need to keep track of how many days they spend in each country, including all work trips, holidays and family visits, to ensure that the total across all countries does not exceed 90 days. While the authorities do provide an online calculator, the administrative burden of tracking their days falls largely on the individual. If questioned, they may need to provide travel receipts and flight bookings to evidence their entry and exit dates from a particular country.
Previously, British nationals would not need to think twice about travelling to Europe for work purposes. However, since the UK’s departure from the EU, not only does an employer need to consider the specific activities undertaken by their employees, but also the administrative applications and necessary documents that may be required even for short trips – especially as compliance regulations become stricter.
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