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The European Union has substantial legislation on seconded workers which aims to guarantee European workers who go to work temporarily in another EU Member State a set of social rights (e.g. minimum wage, maximum working hours and minimum rest periods, paid holidays).

Following the Brexit, the United Kingdom is a third country to the European Union since 1^st January 2021. As a result, EU law ceased to apply. A transitional period was put in place between 1^st February 2020 and 31 December 2020.

The United Kingdom and the EU signed an agreement (The EU-UK Trade and Cooperation Agreement) on 30 December 2020 setting out the rules for their relationship in several areas following the Brexit.

You will find below the main consequences of the UK’s exit from the EU on the rules applicable to the posting of workers between France and the UK. 

1. French employees seconded to the UK

• French employees posted to the UK before 1 January 2021

The rights acquired before and during the transitional period continue to apply after 1^st January 2021.

Thus, if the employee was seconded to the United Kingdom before 1^st January 2021, the secondment will continue until the date of the end of the assignment indicated on the Certificate A1 (i.e. certificate concerning the social security legislation applicable to the holder) and, if necessary, this form may be extended to cover the total initial duration of the mission.

The rules applicable to the secondment continue to apply (e.g. continuity of social security coverage) if the employee’s situation does not change and continues without interruption.

It should be noted that French employees lawfully resident in the UK before 1er January 2021 were required to apply online for UK residency status before 1 July 2021. Obtaining this status allows the French resident to stay and work in the UK at the end of the transitional period and retain their rights.

• French employees seconded to the UK after 1^st January 2021

With the Brexit, the free movement of workers between the UK and the EU ended, resulting in significant changes for professional mobility effective from 1^st January 2021.

French employees residing in the UK since 1 January 2021 must obtain a long-term work visa, which will depend on the duration of the employment contract, the level of qualification, the sector of employment or the nature of the job and a job offer.

The agreement of 30 December 2020 also provides for the continuation of the secondment regime with the UK as long as (i) the secondment operation does not exceed 24 months and (ii) the person concerned is not sent to replace another seconded person.

The current rules on posting are maintained, with the exception of the extension of the posting, now strictly limited to 24 months.

2. British employees seconded to France

• British employees seconded to France before 1^st January 2021

British employees working in France before 1^st January 2021 and continuing to reside there after that date should have applied for a residence permit before 1^st July 2021. Pending the decision, the applicant continued to benefit from the right to reside and exercise the professional activity of their choice.

Since 1^st October 2021, a valid passport and a residence permit bearing the words “agreement on the withdrawal of the United Kingdom from the European Union” or a travel document will be required to enter in France.

However, no work permit for the period until the end of the secondment in France is required.

• British employees seconded to France after 1^st January 2021

British employees seconded to France after 1^st January 2021 are considered as third country nationals.

Consequently, they are subject to the provisions of article L. 5221-2 of the French Labour Code which provides that, in order to enter France to work, the foreign employee must present (i) a regular residence permit and (ii) an employment contract approved by the administrative authority or a work permit.

The work permit required by the French Labour Code is constituted by the presentation of the following residence permits: (i) “Article 50 TEU/Article 18 (1) Agreement on the Withdrawal of the United Kingdom from the EU” or (ii) “Permanent residence – Article 50 TEU/Article 18 (1) Agreement on the Withdrawal of the United Kingdom from the EU” or the movement document bearing the mention “Article 50 TEU – Frontier worker/Agreement on the Withdrawal of the United Kingdom from the EU – Non-resident“.

France has chosen to maintain the secondment regime for British workers. Thus, the European rules on seconded workers do apply.