Posted Workers

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Key points
  • The term 'posted worker' is used to describe a worker who is sent from one EU Member State to another to carry out work (albeit for a limited period) in that other Member State. The relevance of the term is to be found in European Parliament and Council Directive 97/71/EC of 16 December 1996 'concerning the posting of workers in the framework of the provision of services'. The purpose of the Directive, which came into force in the UK on 16 December 1999, is to ensure that employers sending workers on temporary assignments to other EU countries, or tendering for contract work in another Member State, do not acquire a competitive edge by paying their workers less, or by offering terms and conditions below the legal minimum in that other Member State. A 'limited period', for these purposes, is a period of up to one year from the beginning of the posting (including any previous periods for which the post in question was filled by a posted worker).

  • Implementation of the 'Posted Workers' Directive in the UK does not require specific legislation. However, the Directive has prompted minor amendments to the Sex Discrimination Act 1975, the Race Relations Act 1976, the Trade Union & Labour Relations (Consolidation) Act 1992, the Disability Discrimination Act 1995, and the Employment Rights Act 1996, each of which previously limited the application of certain employment rights to persons who ordinarily work in Great Britain. Those limitations have now been removed.
    Note 
    The territorial limits in the enactments referred to above were repealed by section 32 of the Employment Relations Act (which came into force on 25 October 1999) and by the Equal Opportunities (Employment Legislation) (Territorial Limits) Regulations 1999 (which came into force on 16 December 1999).
Duties of employers
  • UK employers sending one or more of their workers to carry out work for a limited period in another EU Member State must familiarise themselves with the laws, regulations and administrative provisions of that Member State, and/or (so far as building work is concerned) with any collective agreements or mandatory arbitration awards in that Member State which relate to:
    • maximum work periods and minimum rest periods;
    • minimum paid annual holidays;
    • minimum rates of pay (including overtime rates);
    • conditions for hiring out workers, notably workers supplied by temporary employment businesses (or 'employment agencies', as they are often, if incorrectly, referred to in the UK);
    • health, safety and hygiene at work;
    • protective measures with regard to the terms and conditions of employment of children, young persons and new or expectant mothers; and
    • equality of treatment between men and women, and other provisions prohibiting discriminatory treatment on specified grounds;
    and must guarantee that the workers posted to that Member State enjoy no less favourable terms and conditions during their periods of posting.

  • It is, of course, open to employers to apply more favourable terms and conditions to those of their workers who are posted to other EU Member States for a limited period. If they are entitled (in any respect) to more favourable terms under their existing contracts of employment (whether imported by statute or otherwise), those more favourable terms must, of course, prevail.

  • Article 4 of the Directive acknowledges that employers may have some difficulty 'tracking down' the employment laws and health and safety legislation of other Member States. To that end, Article 4 imposes a duty on each of the Member States to designate one or more liaison offices or one or more competent national bodies to provide that information. Furthermore, they must cooperate with each other to ensure that such information is disseminated and freely available. Until such time as the network, so to speak, is complete, interested readers should direct their enquiries to the labour attachés at the relevant embassies. 

  • Employers in other EU Member States who post their workers to the UK for a limited period will, of course, need to familiarise themselves with (in chronological order):
    • the Employment of Women, Young Persons & Children Act 1920;
    • the Children & Young Persons Act 1933;
    • the Children & Young Persons (Scotland) Act 1937;
    • the Equal Pay Act 1970;
    • the Health & Safety at Work etc Act 1974;
    • the Sex Discrimination Act 1975;
    • the Race Relations Act 1976;
    • the Workplace (Health, Safety & Welfare) Regulations 1992;
    • the Disability Discrimination Act 1995;
    • the Employment Rights Act 1996;
    • the Working Time Regulations 1998;
    • the National Minimum Wage Regulations 1999;
    • the Maternity & Parental Leave etc Regulations 1999;
    • the Management of Health & Safety at Work Regulations 1999;
    • the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
    • the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
    • legislation relating to adoption leave and pay, paternity leave, and flexible working (see Index);
    and with health and safety legislation (such as the Diving at Work Regulations 1997, the Control of Lead at Work Regulations 2002, the Control of Substances Hazardous to Health Regulations 2002, etc) which contain measures for the protection of workers engaged in prescribed hazardous activities.
Categories of workers
  • The Directive identifies three categories of workers. These are:
    1. workers sent by their employers to another EU Member State to carry out work for customers or clients in that other Member State;
    2. workers sent by their employer to work in a subsidiary or associated company established in that other Member State; and
    3. temporary workers employed by an employment business (or placement agency) who are hired out on agreed terms to a client employer in another EU Member State.
Category (1) workers
  • Typical of 'Category (1)' workers are people sent by their employers to carry out building work (see Note below) in another Member State (for a limited period) or to install plant and equipment (eg, a ventilation system or a refrigeration unit) purchased by a client or customer in that other Member State (where the installation of such equipment is an integral part of the contract for the supply of such equipment).
    Note 
    The expression 'building work' includes all work relating to the construction, repair, upkeep, alteration or demolition of buildings, and, in particular: excavation, earthmoving, actual building work, assembly and dismantling of prefabricated elements, fitting out or installation, alterations, renovations, repairs, dismantling, demolition, maintenance (including upkeep, painting and cleaning work) and improvements.

  • However, the terms of the Directive do not apply to skilled or specialist workers sent by their employer (the supplier) to install plant and equipment in a customer or client's premises in another EU Member State (so long as the work in question does not amount to building work) if their posting to that other Member State does not last for more than eight days.

  • Although it is uncommon nowadays for UK building workers to be sent by their employers to work on a construction site in another Member State, UK employers planning to do so should be alert to the existence (and complexity) of a variety of collective agreements and mandatory arbitration awards (peculiar to several EU Member States, notably Germany) which might well reduce the cost-effectiveness of such postings. It is more usual for UK workers to travel independently to other EU Member States looking for work on a building or construction site (as they have every right to do).
    Note 
    Article 3(3) of the Directive allows that a Member State may ('after consulting employers and labour') legislate for a derogation from the Directive's provisions relating to minimum rates of pay and overtime rates for workers in Categories (1) and (2) who are posted to another EU Member State for a period of one month or less. The UK government has decided (for the time being at least) not to exercise that option.
Category (2) workers
  • The 'Category (2)' worker is a worker temporarily transferred by his (or her) UK employer to another branch of the organisation, or to a subsidiary or associated employer situated in another EU Member State, and who remains in the employ of his or her UK employer during the period of posting. Such workers must be treated no less favourably than resident workers during their stay in that Member State in terms of minimum pay rates, maximum working hours, minimum rest breaks and rest periods, annual holidays, equal treatment regardless of gender, race or disability, and health and safety protection.
Category (3) workers
  • The third category of worker is the 'temp' or agency worker, who is employed under a contract of employment with an employment business (or placement agency) in one Member State, and who is hired out for a limited period to a 'user undertaking' in another EU Member State. So long as he or she remains in the employ of that business or agency throughout the period of posting, the hired-out worker must be paid no less than the minimum rates of pay and overtime rates applicable to comparable workers in the Member State in question and enjoy the same statutory protection (in terms of working hours, period of employment, rest breaks, holidays, health and safety measures, etc).

  • Furthermore, Article 9 of the Directive provides that a Member State may take steps to ensure that employment businesses and placement agencies established in other Member States provide a guarantee that temporary workers posted to its territory are hired-out on terms and conditions no less favourable than those that apply to its own temporary workers.
Enforcement
  • Any worker sent by his employer to work for a limited period in another EU Member State, whose wages or salary, working hours, holiday entitlement, etc are less favourable than those prescribed for workers normally resident in that Member State, may enforce his or her rights under the Posted Workers Directive by instituting proceedings before the appropriate tribunal or court in that Member State or in the Member State in which he normally works.
Likely implications for UK employers
  • Nowadays, it is uncommon for relatively lowly paid workers in the UK or elsewhere to be sent by their employers to carry out short-term assignments in other EU Member States. Such postings are usually confined to businessmen and women, accountants, bankers, technicians, engineers, and the like (whose terms and conditions of employment are unlikely to fall below the minima prescribed for workers engaged in comparable activities in those other Member States). This will not necessarily be true of nurses, waiters, waitresses, secretaries, interpreters, bricklayers, carpenters, plumbers, etc employed by employment businesses (or placement agencies) who are hired out to clients in other Member States for limited periods. In the latter case, the Posted Workers Directive is applicable if, but only if, the workers in question remain in the employ of the relevant business or agency throughout the period of their postings.
Free movement of workers
  • The nationals of one Member State who travel to another Member State in search of work (eg, as waiters, waitresses, builders, etc) usually do so independently – exercising their right under Article 39 (formerly Article 48) of the Treaty of Rome 'to move freely within the territory of Member States', 'to accept offers of employment actually made', 'to stay in a Member State for the purpose of employment', and 'to remain in the territory of a Member State after having been employed in that State'.
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