New law: UK employees and independent professionals wanting to work in the EU must comply with new rules following end of Brexit transition period

EU member states’ rules which impose restrictions on non-EU nationals without a work permit or residence permit who wish to work in the EU now apply to UK nationals, following the end of the Brexit transition period at 11pm on 31 December 2020.

As EU member states can make their own rules regarding non-EU individuals, the restrictions will vary depending which country the business traveller is visiting. A particular member state may, for example, have rules prohibiting professionals such as lawyers, engineers, etc. from working there unless it has formally recognised their qualifications.

However, under the Trade and Co-operation Agreement (TCA) between the EU and UK, it is clear that some common rules will apply. UK nationals who fall within one of five categories in the TCA will, subject to conditions, be entitled to work in an EU member state.

One category is ‘short-term business visitors’. These are UK employees who do not have a relevant work or residence permit for the relevant EU member state but are sent there to carry on an activity that the state permits non-EU nationals to carry on, for 90 or fewer days in any 180-day period. They must be paid from the UK. The permitted activities can differ from state to state, but the TCA refers to activities such as meetings, research and training as possible permitted activities.

Another is a ‘contractual service supplier’. This is a suitably qualified and experienced UK employee with at least 12 months’ service, whose UK employer does not have a presence in the relevant EU member state but is party to a short-term, bona fide contract (for less than 12 months) to supply services to a final consumer there, in a defined industry sector.

‘Independent professionals’ are like contractual service suppliers but who are self-employed. They are UK nationals with specified qualifications and/or experience, who do not have a presence in the relevant EU member state but are a party to a short-term, bona fide contract (for less than 12 months) to supply services to a final consumer there, in a defined industry sector. Significantly for agencies, the contract cannot have been arranged through a UK recruitment agency.

‘Intra-corporate transferees’ are UK employees of at least 12 months’ standing who are transferred to a group company (or other entity) in the relevant EU member state on a temporary basis – for example, as a manager, specialist or trainee.

A ‘business visitor for establishment purposes’ is someone sent to a country to set up a business there for their employer. They may not carry out any other activity and must be paid from the UK.

Under the TCA, EU member states have agreed not to impose restrictions such as economic needs tests, or discriminatory barriers, on UK nationals in these categories, but individual states may impose other restrictions. The situation across the EU is still in flux, as the TCA was made at the eleventh hour and has not yet been fully ratified by the EU, so the particular requirements of a target member state may not yet be clear.

Employers and independent professionals should monitor their target member state(s) as that state’s precise requirements for the relevant category become clear.

They should also be setting up systems so they can demonstrate where their employees working in the EU are, and what they are doing there, using time sheets, phone tracking, etc. if appropriate.

The usual considerations arising from overseas working will continue to need attention, such as tax, payroll, social security, and pensions.

Operative date

• Now

Recommendation

• Employers planning to send employees to work in the EU, and independent professionals who plan to work there, should consider which category they may fall into, check that they can comply with the necessary conditions, and set up appropriate systems and procedures to enable EU working.