In accordance with the Withdrawal agreement (Council, 2019/C 384 I/01) concluded between the EU and the UK, all European law remains applicable during a transitional period ending on 31 December 2020.
As of 1 January 2021, Brexit will have a material impact in the field of social law, especially for new international employment situations that are not covered by the Withdrawal agreement.
The new UK-EU Trade and Cooperation Agreement (hereinafter “the TCA”) reached on Christmas Eve 2020 lays down certain 'new' rules in this respect.
A distinction can be made between the consequences regarding labour law, immigration and social security coordination.
Consequences for applicable labour law
The UK leaving the EU will have no consequences for the rules determining the applicable labour law in the case of a cross-border occupation involving Belgium and the United Kingdom. These rules will continue to be determined by the Rome I Regulation and the Belgian law on the posting of workers of 5 March 2002.
However, if British law is applied, attention will need to be paid as British labour law may change as a result of the UK's exit from the EU. At this moment, it is still unclear if legislation based on European Directives or rulings of the European Court of Justice will be maintained as of 1 January 2021. Among other things, reforms affecting the following aspects of labour law may be implemented in the future:
- Working time
- Temporary staff
- Transfer of businesses / collective redundancy
- Some family-friendly measures, including pregnancy and parental leave
- Minimum wage
- Stipulations regarding equality and the prohibition of discrimination
It is important to know that in many cases UK regulations have a larger scope and offer more protection than the European minimum standards. From 1 January 2021, British lawmakers will, however, be free to deviate from European legislation and the rulings of the European Court of Justice.
Consequences for the free movement of workers
Free movement of workers is one of the four fundamental freedoms in the EU. EU citizens have an automatic and unlimited right to move and work in other EU Member States. From 1 January 2021, EU rules on the free movement of workers no longer apply in the UK.
In order to determine the immigration rules applicable after the end of the transition period, a distinction must be made between situations existing on 31 December 2020 and those starting from 1 January 2021.
In general terms, the Withdrawal agreement aims at safeguarding the rights of the citizens (i.e. the beneficiaries of the Withdrawal agreement) and their family members who are lawfully residing and/or working in the EU or in the UK before the end of the transition period.
In order to safeguard their acquired right to reside and/or work, some formalities must be fulfilled:
- UK nationals and their family members lawfully residing in Belgium on 31 December 2020 and continuing to do so as of 1 January 2021 will be invited to their local town hall to initiate the procedure of obtaining a new type M residence permit. If so, they will also be able to continue working without a work permit.
- Belgian nationals and their family members who were living in the UK before 1 January 2021 need to apply for the EU Settlement Scheme before 30 June 2021. If the application to the EU Settlement Scheme is successful, they will be able to continue to reside and work in the UK.
For any situation beginning on or after 1 January 2021, the United Kingdom is to be considered a third country. The UK refused to include a chapter on mobility in the TCA, or any provision aimed at facilitating short-term visits or long-term stays.
The only exception relates to the temporary movement of natural persons for business purposes, i.e. contractual service providers, independent professionals, intra-corporate transferees, business visitors for establishment purposes, and short-term business visitors. For example, short term business visitors will not need any prior work or travel authorization provided their stay does not exceed 90 days in any six-month period and they are limiting work to permitted activities listed in the TCA.
Apart from that, the TCA does not cover the right of EU citizens to enter (with or without visa), work, reside or stay in the UK or of UK nationals to do the same in the EU. Thus, the following national rules apply as from 1 January 2021:
- UK nationals have to obtain a work authorization prior to commencing their activities in Belgium. In most cases, this will be a B work permit (salaried activity for less than 90 days), a single permit (salaried activity for more than 90 days) or a professional card for self-employed persons. Standard eligibility conditions and processing times will therefore need to be taken into account as from 1 January 2021.
- A new points-based immigration system will apply to EU nationals arriving in the UK from 1 January 2021. The point-based system lays down strict conditions for obtaining a work permit (salary threshold, job at appropriate skill level, English language requirement, etc.). Moreover, all employers who wish to employ EU nationals will require a sponsor license.
Consequences for social security coordination
The provisions on acquired rights in the Withdrawal agreement ensure that the Regulation 883/04 on coordination of social security remains applicable to all cross-border situations which started no later than 31 December 2020 and which will not be interrupted after that date. The rights of citizens who started their activity before 31 December 2020 will thus be preserved. It is therefore strongly recommended to obtain an A1 document in order to be able to prove that a cross-border work situation has started before the end of the transition period.
For new cross-border situations or existing cross-border situations that are interrupted after 31 December 2020, the TCA continues to ensure that only one set of rules applies to a person at any given time.
In the event of simultaneous employment in one or more Member States and the UK, the rules generally remain the same as those laid down in European Regulation 2004/883. Multi-state workers will be covered by the legislation of the State of residence if they carry out a substantial part of their activity in that State. If this is not the case, the applicable social security will in principle be that of the country in which the employer is located.
The TCA does not specify what is meant by 'substantial part of the activity'. It is therefore unclear whether or this must still be interpreted as a professional occupation of at least 25% in the State concerned. For now, this would seem like most logical interpretation, however, given the many similarities between the rules under the TCA and the European rules.
Detached workers (secondment)
The TCA also provides for rules on the coordination of social security in the event of secondment. The rules for detached workers are also to remain broadly the same as those provided in European Regulation 2004/883. An employee sent temporarily by their employer to perform work in another state will continue to be subject to the social security legislation of their home country provided that the duration of the posting doesn’t exceed 24 months and they are not replacing another detached worker. The TCA does not provide for a possibility to extend this maximum duration of 24 months.
However, there is an important point of attention. The TCA provides for the possibility of an 'opt out': each EU country must individually agree to apply the rules on detached workers by 1 February 2021 in order for them to continue to apply. Therefore, there is no guarantee that these rules will apply to all secondments in all EU Member states and we will have to wait for EU Member States to formally confirm their respective agreement or non-agreement.
For secondments starting between 1 January 2021 and 1 February 2021, when a worker is sent to a country that has not yet made a choice about the application of the rules, he or she will be treated as if the secondment rules apply for as long as his or her activities continue. Therefore, whether or not the EU Member State later decides not to apply these rules, the worker can continue to be covered by the legislation of his or her home country by means of a valid certificate.
If an EU country decides not to apply the rules on detached workers, employers and employees will be obliged to pay contributions in the country where they are working temporarily (unless they fall within the scope of the Withdrawal agreement - see above). However, double contributions cannot be required.
On 12 January 2021, Austria, Hungary, Portugal and Sweden agreed to apply the rules on 'posted workers'. You can find the latest list of countries applying the rules on 'posted workers' on the following website: https://www.gov.uk/guidance/national-insurance-for-workers-from-the-uk-working-in-the-eea-or-switzerland.