Explains the rights and responsibilities you have if you’re a posted worker.
You are a ‘posted worker’ if your employer temporarily sends you from the country you normally work in to another country to work. Both the country you normally work in and the one you’re temporarily sent to must be in the European Economic Area (EEA).
This includes when:
- your employer sends you to another EEA country to carry out a contract
- your employer sends you to work in another part of their business which is based in another EEA country for a limited time
- your employer is a placement agency based in one EEA country and is hiring you to carry out a contract in another EEA country
For example, a company in the UK invites bids for a contract to provide a specific product which requires expert instalment. A company based in another EEA country is appointed and provides the product and sends its workers to install it. During the time those workers are in the UK they are ‘posted workers’ and are entitled to minimum UK employment rights.
Preparing to come to the UK
You only need to give notice to the UK authorities if you are a non-EU national or working in an industry where a criminal check is required.
Employers don’t need to register workers or keep records about the posting unless the posted worker is:
Paying tax and national insurance
As a posted worker your employer will normally apply for an A1 on your behalf when you go to work temporarily in another EEA country. The A1 form certifies which country’s social security legislation applies to the holder of the form.
Find out more about national insurance contributions, A1 forms and tax if you come to work in the UK.
Your employment rights
If you are a posted worker in the UK you have the following statutory employment rights while you are working here:
- maximum work periods and minimum rest periods
- minimum paid annual holidays
- minimum rates of pay, including overtime rates (not including supplementary occupational retirement pension schemes)
- conditions for hiring out workers, in particular the supply of workers by temporary employment firms
- health, safety and hygiene at work
- terms and conditions of employment for pregnant women or women who have recently given birth, children and young people
- equality of treatment between men and women and other protected characteristics
Your employers are allowed to offer better employment terms and conditions than the minimum in the country you have been posted to.
While working in the UK you can use these existing services to:
- make a complaint about the non-payment of the national minimum wage
- seek advice on rights at work and get help with employment disputes
- make a claim to an employment tribunal if you think someone has treated you unlawfully
Construction sector: changes to workers’ rights (June 2016)
The Posted Workers (Enforcement of Employment Rights) Regulations 2016 will come into force on 18 June 2016. From that date if you’re a posted worker in the construction sector you will have the right to make a claim against your employer’s contractor for the non-payment of wages up to the national minimum wage and national living wage. This will only apply if you are working in:
- actual building work
- assembly and dismantling of prefabricated elements
- fitting out or installation
- upkeep, painting and cleaning work
You will be able to either:
- bring a complaint against your employer; or
- make a claim against the company who contracted with your direct employer
You won’t be able to claim against the contractor if you have already started a claim against the employer. Where you have started a claim against the contractor and the contractor successfully defends the claim on the basis of a due diligence defence, you will then be able to claim against the employer.
Contractors and due diligence
The contractor may have a defence to the claim for unpaid wages if they can demonstrate to an employment tribunal that they have carried out due diligence in the process of entering into the contract for services.
‘Due diligence’ is the term for the checks carried out and examination of all available information before a transaction takes place. The due diligence defence under the Posted Workers (Enforcement of Employment Rights) Regulations will require all reasonable care to be exercised to ensure a sub-contractor using posted workers pays those workers no less than the legal minimum wage.
There will be some best practice principles which contracting companies can consider when carrying out due diligence checks in relation to service providers who will be posting workers. These could include:
- understanding the service provider’s operating context
- establishing that the service provider:
- is set up legally (‘legitimately constituted’)
- can prove financial transparency and robust financial monitoring
- has a good track record in paying employees correctly and on time
- has no outstanding judgements against them relating to breaches of employment rights
- considering getting assurance/guarantee/indemnity from the service provider that they shall pay their workers no less than the minimum wage
- considering setting a turnover or reserve threshold for service providers as part of the tendering criteria
Other sources of guidance
The UK’s construction industry has an existing framework of service agreements in place which aim to support best practice in contracting and prevent abuse. Further information can be found through the relevant industry website.
You should seek independent legal or financial advice on the contract.
Further information and advice
The Citizens Advice Bureau provides free, independent, confidential and impartial advice to everyone on their employment rights and responsibilities. Read their posted workers guidance.
Employers can seek advice from the Arbitration Conciliation and Advisory Service (Acas) by telephone 0300 123 1100 or through their ‘help online’ tool.
Email email@example.com if you have general enquiries about posted workers.
Published: 27 April 2016