Under what legislation is my overseas employee working?

I have to send an employee to work in France on a full-time basis over a 12 month contract. He will also be living there throughout this time but he is employed by us in London. Is he managed by UK employment law or French legislation?

Workers who are transferred on a temporary basis from one EU state to another or from outside the EU into an EU country are known as ‘posted workers’.

In 1996, the EU adopted the Posted Workers’ Directive. The purpose of this directive was to improve the protection for migrant workers, who are posted temporarily to work in another member state. Due to the temporary nature of their postings, posted workers do not qualify for full equal treatment rights under the EU free movement principles. Posted workers have to comply with the labour law of the host country however, employers pay social contributions in the country of origin.

To guarantee that the rights and working conditions of a posted worker are protected throughout the European Union, and to avoid ‘social dumping’ where foreign service providers can undercut local service providers because their labour standards are lower, the European Community law has established a core of mandatory rules regarding the terms and conditions of employment. Whatever the law applicable to the employment relationship, the workers concerned are guaranteed, in relation to certain specified matters, the same terms and conditions of employment as are afforded to domestic workers in the state they are working:

1/ maximum work periods and minimum rest periods

2/ minimum paid holidays 

3/ equal rates of pay

4/ equal opportunities

5/ the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings.

This covers employees being sent to another member state in three situations:

1/ When an employer posts a worker to another member states on his own account and under his direction, under a contract which the employer has concluded with the party in the State for whom the services are intended;

2/ When an employer posts a worker to an establishment or to an undertaking owned by the group in the territory of a member state;

3/ When the employer, being a temporary employment undertaking or placement agency, hires out a worker to a user undertaking established or operating in another member state.

The employment relationship between the employer and the posted worker must be maintained during the period of posting.

The employee can maintain their current employment contract however where the terms and condition’s differ to the country they are being posted to, the terms must equal or be greater than the basic terms and conditions afforded to domestic workers of that country, in this case France in the areas above. Additionally ensure their contact supports work outside of the UK identifying they will be required to work outside the United Kingdom for a period, or periods, exceeding one month.

Further reading on employing staff

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Peter Done

Peter is the founder and group managing director of Peninsula Business Services, established in 1983.

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