Temporary remote workers do not qualify as Posted Workers in the meaning of the EU PWD

Pieter Manden is the Co-Founder of WorkFlex and former Head of Trust & Employer Compliance at WorkMotion. He is a Dutch certified tax lawyer specialising in compliance around modern mobility. Pieter has 13 years of professional experience with PwC in the Netherlands and Germany. He was Director responsible for the PwC Germany's Remote Work proposition prior to joining WorkMotion in January 2022.

Gonzalo Corrales Cortes is a Senior Associate Tax & Legal at WorkFlex. He is a Spanish law graduate, specialising in international tax. He enjoyed his international education in Spain, France and the Netherlands. He has working experience in both France and Belgium, where he started his career with Deloitte. Gonzalo is currently enrolled in a Legal Practice Master's program to obtain a certification as a lawyer in Spain.

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1. Introduction

In recent years, especially after the COVID-19 pandemic started in 2020, remote work has become a reality for many people. The number of employees working remotely is increasing and is likely to continue to do so in the future. This also means that employees will not necessarily work from their resident country all the time, but possibly from other countries too as part of a so-called Workation (a combination of work and vacation). Especially in this international setup, several employer compliance topics must be addressed, including immigration, social security or tax.

With remote work being such a relatively new concept, it was not in the back of the minds of the regulators who were working on work-related issues. An example of this is the Directive 96/71/EC of the European Parliament and the Council of 16 December, also known as the Posted Workers Directive (PWD). The PWD prescribes that employers, amongst other things, need to notify local authorities if they have posted an employee from the employment country in the specific destination country. This is a significant administrative burden that employers prefer to prevent. In this regard a question that we are often being asked is:

Do temporary remote workers qualify as posted workers in the sense of the PWD?

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2. Definitions

Temporary remote worker

An employee who works outside the country of employment on a temporary (<183 days) basis, without this trip having any business reason or purpose. The employer has allowed the employee to temporarily work outside the country of employment, but this trip is entirely privately driven.

Posted worker

An employee who, for a limited period, is sent by his/her employer to carry out a service in an EEA member state other than the state in which he/she normally works, in the context of a contract of services, an intra-group posting or a hiring through a temporary agency.

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3. Conclusion

We are of the opinion that this question should be answered negatively. Temporary remote workers do not qualify as posted workers in the sense of the PWD.

The fact that some of the PWD´s translation into national law is somewhat ambiguous, does not change our conclusion. In our view, neither the EU nor the specific countries had the ambition to cover temporary remote workers under these regulations. The aforementioned leads to the implication that we find that no PWD notification duties arise related to temporary remote workers.

Hereinafter, we elaborate on the arguments in favour of our conclusion, some grey areas and we discuss a future outlook.

4. The aim of the PWD

The objective of the PWD is to protect the rights and working conditions of the posted employees and to address a number of concerns such as social dumping. Following the PWD, the member states are obliged to guarantee to these employees certain rights and conditions of employment that are granted to local workers in the host country.

Remote workers were not initially meant to be covered. Indeed, regarding the objective of the law, they should not even be a subject of concern, because they do not compete with the local workforce, and rights such as assuring the minimum wage of the host country are irrelevant, since remote workers often come from countries where they are paid higher salaries than local ones. At least, it is clear that this is not a situation of social dumping.

The PWD has been enacted into national legislation by all the EEA member states and Switzerland, thus the definition of posting workers can vary and have a broader or more restricted meaning depending on the country. The majority of the time, remote workers are clearly excluded from the scope of these national rules, especially as they do not meet the posting workers main characteristics. By way of illustration, some examples can be mentioned:

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Spain

According to the Law 45/1999, following which displaced worker is deemed to be the worker, whatever his nationality, of the companies included in the scope of this Law moved to Spain for a limited period of time in the framework of a the provision of transnational services, provided that there is a working relationship between such undertakings and the worker during the period of posting.

France

The French legislator has enacted the PWD via its Labour Code, defining a posted worker as any employee regularly established and exercising his/her activity outside France and who usually working on behalf of the latter outside the national territory, carries out his/her work at the request of the employer for a limited period on national territory under the conditions defined in Articles L.1262-1 and L. 1262-2.

Netherlands

The PWD is translated into national Dutch law via the “WagwEU”. This law defines posted workers as foreign employees who have been sent to work in the Netherlands for a limited time as part of a transnationalservices agreement. Under such a transnational services agreement, the employees are at the Dutch recipient´s disposal to perform work activities in the Netherlands.

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Based on the above, it becomes even clearer then, that remote workers do not fit in the general definitions of posted workers given in most of the member states national law. The reasoning behind is that a posted worker generally provides a transnational service to a specific recipient in the country of arrival (i.e a parent company or a subsidiary belonging to the group), while the employee working remotely will keep providing the service to the same employer regardless of the place of residence. Besides, while a remote worker is in the destination for private reasons, posted workers are being sent to another country at the request of his/her employer to perform some specific tasks in a contracting enterprise.

5. Arguments against: grey areas

On the other hand, it should be noted that due to the different perspectives to implementing the PWD among EEA member states, a few countries have adopted a much more compliance-heavy approach. They seem to have enlarged the concept of posted workers in their local law. Examples are Portugal or Belgium. In these countries, any “work-related presence” may trigger the application of the directive and could cause more administrative obligations for the employer in order to avoid being fined. This approach would also make the country less attractive for the potential workforce looking for a few weeks or months working therein.

Belgium

According to Belgian national law, a posted worker is an employee that works and was initially hired outside the country but is temporarily working in Belgium.

Portugal

Following the Portuguese Labour Code, a posted worker is an employee hired outside the country but temporarily working in Portugal in the context of acontract of services, an intra-group posting or a hiring out through a temporaryagency.

As such, in the case of Belgium the local implementation of the PWD seems to have a broader sense than other countries. This is also true for the UK, where employees have certain minimum statutory rights from day one. This can be a complicating factor, particularly if a dispute or termination scenario arises and the employee asserts that they have employment rights in another jurisdiction… While in Portugal it could be easily argued that the context is not the performance of a service due to a specific contract but the validity of the same contract with the same employer.

Although in practice these countries have differentiated between posted workers and temporary remote workers situations, by not imposing the PWD rules to privately driven individuals. This was confirmed by local tax authorities upon our request, it has however not been published as an official statement (yet).

Additionally, it is undeniable how the treatment of both posted workers and remote temporary workers remains the same in some specific areas such as Social Security or VISA/immigration law.

Concerning Social Security, it should be kept in mind that when a company posts employees into other EU countries on a temporary basis, most of the time they remain insured for social security purposes in the country where the company business is located. In these cases, an A1 certificate or a CoC (Certificate of Coverage) should be issued. An A1 certificate of coverage is an European form that states the country in which a worker is covered by social insurance. Regardless of the travel reason (privately driven employees or employees sent by their employers), employees must always be covered by social security since in order to protect both employer and employee, there should be a way to certificate their coverage during the stay abroad.
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Related to immigration law, when non-EU member state employees are posted into an EU country, they need both a visa and work or resident permits. So do remote workers when they visit third countries, as a result of the performance of services abroad they need a business visa to travel instead of a tourist one as well as being in possession of a valid work permit if requested in the country.

6. Future Outlook

Even if the disparities are bigger than the similarities, these two concepts may be misleading and can drive the legislator to vaguely apply similar regulations on both cases despite the differences. Elements like who is the actual beneficiary of the services, or the request of the employer to carry out the job in another country have been considered key elements to differentiate these two realities by several authors.

Most of the countries have already openly stated that temporary remote workers are out of the scope of their PWD transposition in national law which provides with an unquestionable flexibility for both employers and employees.

Although, due to the high volume of employees aiming to benefit from some periods working from abroad (that will keep increasing in the upcoming years) and the opportunity that entails attracting migrant talent into our borders, governments and EU institutions proactivity is crucial in order to create an assured and suitable atmosphere for both employers and employees and avoiding regulatory gaps for remote workers aiming to work from overseas. Designing remote work policies that comprehend the harmonisation of member state legal approaches or clarifying complex and unclear points regarding social security would be a nice way to start this journey.

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