We are now coming to the end of the transition period. In order to fully understand the impact of the Brexit on the determination of the competent state in matters of social security from 1 January 2021, two types of situations need to be distinguished.
Cross-border employment situations involving an EU Member State and the United Kingdom that started before 1 January 2021
On the basis of the principle of vested right, the withdrawal agreement provides for the continued application of the Regulations on the coordination of social security systems to persons who, before 1 January 2021, were already in a cross-border employment situation involving one or more Member States and the United Kingdom, provided that the following conditions are met:
The cross-border employment situation involves one or more Member States and the United Kingdom
This applies to all cross-border employment situations involving the United Kingdom for which the Regulations provide a conflict of law rule.
As a rule, these situations shall be notified to the competent institution in the Member State of residence and can be certified by means of the A1 form. The continued application of the Regulations applies even if these formalities have not been complied with.
The following are examples of such situations:
- A sales representative visiting customers on behalf of his Belgian employer in Belgium (40%), France (30%) and the United Kingdom (30%) since 2018
- A representative of a British company who is also employed in Amsterdam since January 2020 and who resides in Belgium
- An engineer seconded by his British employer to a client in Brussels during the period from 15 September 2020 to 15 March 2021.
The situation started no later than 31 December 2020
There is no prior minimum duration. The cross-border situation could therefore have started on 31 December 2020.
The cross-border employment situation is uninterrupted
In principle, any interruption, regardless of its duration, terminates the vested rights. There is an interruption if, at a given time, all the elements of the situation are located solely in the Member States, or solely on the territory of the United Kingdom.
Assimilated situations (sickness, career break with benefits, etc.) are generally considered as an interruption. The same applies to paid annual leave.
The vested rights covered by the withdrawal agreement will not be jeopardised if different cross-border employment situations follow one another in an uninterrupted succession.
For example, the following situations are considered to be uninterrupted situations:
- An architect resides and works in Belgium. At the same time, she has been working for a company in the United Kingdom since 2012. In March 2021, she decides to move to the United Kingdom to continue her activity as an architect with 30% in Belgium and 70% in the United Kingdom
- An IT consultant works 50% in London and 50% in Amsterdam where he has been resident since 2019. In January 2021, he takes 3 weeks sick leave following an operation on his hand
- An employee is seconded by his British employer to France from 1 September 2020 to 28 February 2021. From 1 March 2021, he is hired by a Belgian company and works 50% of his time in Brussels and 50% of his time from his residence in the United Kingdom.
Cross-border employment situations involving an EU Member State and the United Kingdom that began on or after 1 January 2021
In the absence of any other agreement with the United Kingdom, where the employment situation began after the end of the transitional period or has been interrupted, the national legislation of the states concerned will produce all its effects. This may result in a worker not being insured in one of the states concerned, or being obliged to pay social security contributions in several states for the same remuneration.
Indeed, the United Kingdom will have to be regarded as a "third State" and British nationals as "third-country nationals".
In the event of simultaneous employment in one or more Member States and the United Kingdom, there is no common general principle applicable. All aspects of the case will have to be analysed on a case-by-case basis.
If an employee is seconded to Belgium by his or her British employer, the employee will in principle not be subject to the Belgian employee regime, regardless of the length of the secondment. Article 3 of the Belgian Law of 27 June 1969 on social security provides that an employee is subject to Belgian social security only if he or she is working on Belgian territory for an employer established in Belgium (or if he or she is attached to a Belgian branch of an employer established abroad).
However, this rule applies only in cases where the employee remains under the exclusive employer's authority of his or her British employer for the entire duration of the secondment. In order to benefit from the above-mentioned Article 3, it will therefore be necessary to ensure and prove that the conditions for being subject to the social security in Belgium are not met. A certificate stating that these conditions are not met can be requested from the NSSO by e-mail ([email protected]).
An employee seconded from Belgium to the United Kingdom will remain subject to social security in Belgium for a maximum period of 6 months, which can be extended for a further 6 months. After this period, the employee will in principle be subject to social security in the United Kingdom.
Point of attention
The first impact of the Brexit on the free movement of workers will appear soon! Companies involved in cross-border employment situations with the United Kingdom will have to be aware of this as from the beginning of 2021.
BDO can help you if you have any questions. Do not hesitate to contact our social law experts: