Brexit - Employment Law
Free movement of workers
One of the pillars of the EU Treaty is the free movement of workers.
This basic principle has been realized in the EU through (a) the absence of mobility restrictions for EU workers, (b) Regulations that coordinate workers’ social security rights and benefits and (c) Directives that harmonize employment laws.
Brexit has a serious impact on the automatic right to travel and work freely across the EU.
The UK left the EU on 31 January 2020. However, due to the transition period agreed in the Withdrawal Agreement, the free movement only ended on 31 December 2020.
For the period as from 1 January 2021, a distinction must be made between workers who are covered under the Withdrawal Agreement and workers who are not.
Workers of the first category benefit from grandfathering rights which extend their former status under EU legislation beyond 31 December 2020. Workers of the second category are covered by national legislation and the Trade and Cooperation Agreement of 24 December 2020 (TCA). For some topics, the TCA has softened the consequences of the end of the free movement.
Covered under the Withdrawal Agreement
UK nationals who already resided in Belgium before 1 January 2021, as well as UK nationals who were employed as frontier worker in Belgium before 1 January 2021 are covered under the Withdrawal Agreement.
These UK nationals should have applied for or obtained a valid residence document before 1 January 2021 (so-called E(+) or F(+) card), or a so-called Annex 15 for frontier workers. If not, additional proof will have to be added when applying for a new residence card (see below).
The Withdrawal Agreement also protects certain family members, even if they did not yet live in Belgium before the withdrawal, and children, wherever they are born before or after the withdrawal.
Do note that seconded UK frontier workers are not covered under the Withdrawal Agreement.
Beneficiaries of the Withdrawal Agreement can maintain their residence rights in Belgium after the end of the transition period and have free access to the Belgian labour market. They don’t need a single permit (employees) or professional card (independent workers).
Beneficiaries of the Withdrawal Agreement must apply for a new type of residence card (a so-called M card, or, for frontier workers, a so-called N card) before 31 December 2021 to secure their rights. Beneficiaries who resided in Belgium on 31 December 2020 must apply for such a residence card at the town hall of their place of residence. Frontier workers must apply for such a residence card at the town hall of their place of work. The new residence cards are valid for 5 or 10 years and can be renewed.
Note that the Withdrawal Agreement does not extend the free movement. Hence, beneficiaries with a new M or N card will be considered third country nationals outside Belgium.
UK nationals who come to Belgium as from 1 January 2021 are considered third country nationals.
A distinction must be made between short and long stays.
a. Short stays (“business travel”):
UK nationals can stay in the Shengen area up to 90 days in any 180 days period without a visa. The same rules exist for EU nationals in the UK, on the basis of reciprocity.
In principle, a work permit is required to perform work during such short stay.
Belgian national legislation provides for several exemptions, all of which are subject to specific timing restrictions (e.g. 8 days’ exemption for the initial assembly or first installation of goods).
On top of these national exemptions, the TCA allows short-term business visitors to engage in the following business activities (as further explained in the TCA) for a period of 90 days in a 6 months’ period:
- meetings and consultations;
- research and design;
- marketing research;
- training seminars;
- trade fairs and exhibitions;
- after-sales or after-lease service;
- commercial transactions;
- tourism personnel; and
- translation and interpretation.
b. Long stays
For long stays in Belgium, UK nationals will have to follow the existing procedures for third country nationals. Workers will in principle require a single permit and self-employed workers a professional card.
Belgian national legislation provides for several exemptions (e.g. for family members of EU citizens).
The TCA also provides exceptions for:
- Secondment of maximum 12 months in the context of a services agreement, in a limited number of industries, and provided that the worker fulfills a number of conditions.
- Intra-corporate transferees for specific functions and for a limited duration.
It must still be clarified which formalities must be complied with for these exceptions.
Covered under the Withdrawal Agreement
As regards social security, the Withdrawal Agreement protects all EER (+ Switzerland) and UK residents who, at the end of the transition period, are in a cross-border employment situation involving both the UK and a Member State (e.g. Belgium) at a time.
For those workers, the Withdrawal Agreement extends the EU rules on the coordination of social security (Regulation 883/2004) after the transition period, as long as their cross-border employment situation is not interrupted.
However, the employment situation must not remain identical. A modification is possible (e.g. from secondment to multi-state working), provided that there is still a cross-border link.
The TCA provides for rules on the coordination of social security rights for workers in a cross-border employment situation between the EU (not Norway, Liechtenstein, Iceland or Switzwerland) and the UK, as from 1 January 2021, who are not covered under the Withdrawal Agreement.
The coordination rules in the TCA are very similar to the rules in Regulation 883/2004. In a cross-border employment situation, only one national social security regime will apply. In principle, this is the country in which the work is performed, but specific rules apply in case of secondment and multi-state working.
Secondment is limited to two years, but contrary to Regulation 883/2004, this period cannot be extended.
Also, family allowances are not covered by the Protocol (contrary to Regulation 883/2004).
SPECIFIC BELGIAN BREXIT MEASURES
See for the supporting measures for Belgian employers who are in difficulties due to Brexit: our Employment page on Belgium’s Brexit law.
DATA PROTECTION OF HR DATA
See for the processing of HR data and GDPR: our page on data protection.
- Map your expat workforce: which workers are covered under the Withdrawal Agreement and which workers are subject to the TCA
- Urge your UK employees who benefit from the Withdrawal Agreement to request their M or N card
- For the other UK employees (who are not covered under the Withdrawal Agreement):
- Check whether they can benefit from the exceptions which do not require a work permit (both as regards content and timing)
- Track their travel in the Schengen area
- If the exceptions do not apply, be aware of additional formalities and processing time to obtain a single permit (maximum duration = 4,5 months)
- Check the impact of the small differences between the EU coordination rules and the coordination rules in the TCA for each cross-border employment situation.
- Review cross-border employment (expat-secondment) contracts between Belgium and the UK.
- Prepare yourself for transfer of HR data to a third country
Our dedicated Lydian team is ready to assist you with any questions you might have regarding Brexit.Contact us with all your questions on firstname.lastname@example.org