Workers posted from the UK to France
As of January 1, 2021, the United Kingdom has been a country outside the European Union.
A Trade and Cooperation Agreement (TCA) was signed with the United Kingdom on December 30, 2020. Since January 1, 2021, this agreement has determined the rules applicable to relations between the United Kingdom and the European Union, particularly, with regard to trade between the two parties. The Withdrawal Agreement, which entered into force on February 1, 2020, remains applicable in the areas it covers.
Despite these agreements, Brexit has led to some changes in the rules governing the secondment of employees to France. However, most of the formalities that must be implemented by British employers for the secondment of workers remain unchanged.
Summary of the rules applicable to the posting of workers in France by British companies:
French legislation on the secondment of workers and rights applicable to British employees are applicable regardless of the nationality of the seconded employee or the place of establishment of the employer (outside the national territory).
Administrative formalities (in particular, formalities relating to posting prior declarations) and compliance with national labour laws and applicable collective agreements (the so-called “hard core”) continue to be required.
Since January 1, 2021 (for a posting made before or after December 31, 2020), the administrative formalities relating to posting under labour law continue to apply for employers established in the United Kingdom. Employers must nevertheless inform their employees, if necessary, about the new measures related to the right of residence and work authorisation, some of which have been in force since January 1, 2021.
If your employee was seconded to France before January 1, 2021, he or she may continue to be seconded until the end of the assignment.
What are the formalities to be completed for the posting of workers in France?
1. Before starting a service in France, the employer must send a prior declaration of posting to the labour inspectorate. This declaration must be made through the dedicated teleservice called “SIPSI”.
Warning: in the absence of such prior declaration, the employer is liable for a fine of up to €4,000 per seconded employee (€8,000 if repeated within 2 years) up to a total limit of €500,000.
2. The employer must appoint a representative in France who will act as a liaison between the employer and the labour inspectorate.
Warning: if the company representative is not appointed, the employer is liable for a fine of up to €4,000 per seconded employee (€8,000 if repeated within 2 years) up to a total limit of €500,000.
3. The employer or his/her representative must store and provide, when needed:
- Documents relating to the seconded employees’ situation (translated into French): work permit allowing the exercise of a salaried activity, a medical examination document, records of actual wage payments, record of hours worked, employment contract, etc.
- Documents relating to the company, in order to prove that it carries out a real and substantial activity in its country of establishment: document attesting to the law applicable to the contract between the employer and the cocontractor established on the national territory, any document attesting to the number of contracts performed and the amount of turnover that the company earns in its country of establishment and in France…
Warning: failure to provide these documents translated into French is punishable by an administrative fine of up to €4,000 per seconded employee (€8,000 if repeated within 2 years) with a total limit of €500,000. The administrative authority, i.e., the DREETS, may also decide to suspend the provision of services.
Posted workers’ rights the employer must respect:
Regardless of their nationality, seconded employees in France benefit from the ‘core provisions’ of French labour law.
Please also note that the transposition of the European Directive 2018/957 reinforces the obligations of companies in this context:
- Posted workers will have to receive a remuneration equal to that of local employees and not the minimum remuneration: “equal pay for equal work”;
- All the rules valid for local workers (seniority bonus, hardship bonus, thirteenth month…) will apply to seconded workers;
- The hard-core labour law rules only apply during a period of 12 months (18 months in some situations), after which almost the whole French Labour Code is applicable.
Offences to the employer must pay attention when seconding to France:
When the conditions of transnational posting are not respected, this situation may be seen as concealed work, punishable by up to 3 years of imprisonment and a €45,000 fine (€225,000 if it is a company).
The employer must also pay attention to the illicit lending of labour (a profit-making transaction whose exclusive purpose is the lending of labour) and the offence of “marchandage” (profit-making operation of labour supply which has the effect of causing prejudice to the employees or of evading the application of the provisions of the law or of a collective bargaining agreement). These two offences are punishable by 2 years’ imprisonment and a €30,000.00 fine. Legal companies are liable for a fine of 150,000 euros and may be sanctioned in other ways, such as dissolution, prohibition from carrying on business, prohibition from making public offerings of their shares, etc.
What about social security?
- For transnational mobility before 31 December 2020 according to the Withdrawal Agreement, if your employee was seconded to France before January 1, 2021, his or her secondment will continue until the end of the assignment indicated on form A1. The European principles remain applicable even after January 1, 2021, if the employee’s situation is unchanged.
- For transnational mobility as of January 1, 2021, the Trade and Cooperation Agreement is mainly based on the existing regulations that prevail within the EU, the principle of single applicable legislation. Therefore, an employee sent temporarily by his British employer to carry out an assignment in France will continue to be subject to the social security legislation of his country, provided that the duration of the posting does not exceed 24 months and that the worker does not replace another posted worker. There is no possibility of an exceptional extension beyond 24 months.
Please note that an employee posted to France must also comply with French immigration law, the rules of which are applicable depending on the worker’s nationality.
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