The Scope & Employer Responsibilities Related to A1 Certification and Postings in EuropePosted in : Seamus Says - Employment Law Discussion on 5 April 2019
This question is in relation to the A1 certification on postings in Europe. "I would be interested in a quick summary of the scope and employer responsibilities related to A1 certification and postings in Europe. We have a large number of employees who travel to Europe and beyond for business travel".
Seamus: Yeah, so there's an EU directive that allows employees to work for a short period in another EU member state. It must be for a short period. It can't be for any longer than 24 months.
And whilst they're in that other member state . . . so say Northern Ireland to France. We'll use that example. Whilst working in France, they are still employed by their Northern Irish employer. They deal with the recruitment, the contract, the nature of the work that they're doing there, and they enjoy the protection of the Northern Irish legislation respect of their employment.
But their terms and conditions must be of the same advantageous quality as their host country. If the Northern Irish terms and conditions are better, they get that. If the French terms and condition are better, then that's what their terms and conditions should be reflective of.
Scott: Yeah. So that's really to stop somebody . . . say the national minimum wage is higher in France, and you send a national minimum wage worker to France. I think that's unlikely, but anyway you would get the higher rate of national minimum wage, and similarly with holidays.
If you take France, there is a 35-hour working week limit there. So you would have various rules around that, and you wouldn't be able to breach the host nation's employment rights. That's effectively what we're saying. And that's for European transfers.
Seamus: Yes, between the EU member states.
Posting Employees Outside of European Union
Scott: Posting of workers. What about if you're posted outside the EU? There's a rule under the '96 order where you're given written terms and conditions that say that you've got to do certain things, isn't there?
Hannah: There's Article 33 of the order, and it says that your employer should provide you with the period of time that you're going to be working outside of the UK, the currency that you'll get paid whilst you're working outside of the UK, any additional remuneration or any benefits that you're going to get. So presumably, if you're working, say, in India or Dubai or something, you may be able to get an allowance for flying home or maybe family coming out to visit you every so often.
Seamus: Or sometimes you get childcare and all sorts of additional benefits added in whenever you're being asked to move to a different country. Sometimes you get accommodation and a staff.
Scott: A nanny and all that kind of stuff, yeah.
Seamus: And private school then, I think, comes into it sometimes.
Scott: Generally, it doesn't involve people on the national minimum wage. You can ignore that point, I think.
Seamus: And then, finally under that order, you must be given terms and conditions relating to your return to the United Kingdom.
Do the A1 posting of workers regulations apply to very short visits, say, half a day's business travel?
Scott: From memory, the short answer is no.
Seamus: The legislation, just to check that, does say where you're going to be working for more than one month, so that's the guiding principle. If it is just a short trip, and often within mobility clauses within contracts, they'll sometimes say that you might be asked to work outside of the UK, but it won't be for more than a month, something along those lines.
Scott: And that's to cover that particular aspect under '96 order, under the written terms and conditions requirements that apply across Europe.
We've got a few minutes left, 10 minutes, and there are a couple of questions here. They're fairly similar, but they're about the time limits that you have to take a claim to an employment tribunal. So, give your flavour to one of them.
Should we be giving the employee an A1 form for going to an EU country for a short period?
Seamus: Short answer is yes, but what you need to be able to avail of that, being subject still to the UK national insurance contributions, is that you must have been working for one month in your own country first, and then you can get the A1 from HMRC.
More on Contracts of Employment
- HM Revenue and Customs Commissioners v Ant Marketing Ltd 
- Is an employee that rejects an offer of suitable alternative employment entitled to notice pay in a redundancy scenario?
- Delay to employee’s start date due to Covid-19, when does continuity of employment commence?
- Can an employer withdraw offers of employment or delay start dates for new recruits in light of Covid-19?
- Ferguson & Others v Astrea Asset Management Ltd 
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.