What are the conditions of working in the UK after brexit? Do I need a visa to post workers to the UK? Arletti & Partners can help you with everything you need to know about fulfillments and requirements to work after Brexit.
Our Posting Specialists can help you with all the necessary requirements to carry out successful assignments in the UK.
The Construction (CDM) Regulations 2015 set out the obligations for everyone involved in a construction site, from the client to the contractor.
The notion of “construction” in the UK regulatory framework is very broad and encompasses many construction-related activities (Reg. 2 – Interpretation).
Therefore, the application of the CDM Regulations 2015 also applies to a wide range of activities.
CDM Regulation 15 requires contractors to select and employ only suitably trained workers. It is an open obligation, requiring employers to provide their employees with ad hoc and customised training, not standardised training defined by law. British building companies could only admit external workers with a CSCS Card to their construction sites.
This card is issued by the UK builders’ association and is a private certification that proves the professional and H&S skillset of the worker.
A&P can help you get your employees the CSCS Card or other similar certifications, as well as recognising any Italian qualifications they may have acquired.
All those involved in the building site must comply with the general obligations set out in Health and Safety at Work etc. Act 1974, Management of Health and Safety at Work Regulations 1999 and other relevant legislation.
Then, there are the obligations of the CDM Regulations 2015: a company engaged on a construction site may have one or more of the roles described in the Regulations (contractor, designer, principal contractor, principal designer).
Each role has its own specific obligations, we can help you to identify them.
The contractor must draw up a Construction Phase Plan, containing essential information about the construction site, the people involved, the risks present, and the prevention measures taken.
If the site exceeds a certain degree of complexity, it may become necessary to notify the HSE of the site by submitting the Construction Phase Plan. We can help you check whether or not your site needs to be notified.
If two or more contractors operate on the site, the main designer must prepare the Health and Safety File. The file will then be passed to the main contractor, who must take it into account during the work and update it if necessary.
A&P assists companies in adapting the treatment of their posted workers to UK working conditions, in compliance with the PSSC.
A posted worker is entitled to the same terms and conditions as the employee of the UK company for whom he is working (Agency Workers Regulations, 2010: Art. 5 and 6).
The National Minimum Wage (NMW) from April 2021 is: £8.91/hour for employees 23 age-old and over. All further elements of pay defined as mandatory by national law must be included.
In general, the average employee’s weekly working time cannot exceed 48 hours (Art. 4, par. 1 and 3), but there are exceptions.
Workers are also entitled to 11 hours rest between working days and 24 uninterrupted hours of rest per week(Art. 10, par. 1).
Posted workers, who are treated as agency workers under UK law, are legally entitled to 5.6 weeks (28 days) of paid holiday per year.
A&P provides assistance in identifying and obtaining the necessary visa to enter the UK.
Workers with an EU citizenship are considered visa-free by the British government, so they do not need to apply for a visa before travelling to the United Kingdom if it is a temporary stay (6 months or less) and only for activities covered by the Visitor regime (see Permitted activities under Visitor Visa and EU Visa-free regimes).
You can visit the UK on a Visitor visa if you are travelling to the country for certain business reasons and working activities (Immigration Rules, Appendix V).
You can also carry out certain activities with UK employees of the company you work for (e.g. provide training). The basic duration of the visa is 6 months, but can be longer (2, 5, 10 years).
Permitted Visitor visa and, for workers with an EU citizenship, visa-free activities include some general work activities such as attending meetings, conferences or negotiating contracts, but also activities related to the manufacture and supply of goods such as ‘installation, dismantling, repair, or consultancy by a manufacturer for equipment, software or hardware, if that manufacturer has a contract to purchase, supply, or hire with a company or organisation in the UK’ (Immigration Rules, Appendix Visitor: Permitted activities)
Such activities are allowed also in case of sub-contracting the after-sales service, provided such service was stated in the main contract with the UK company.
For those providing services, a T5 Visa may be required.
To apply for a Skilled Worker visa, you must work for a UK employer who has been approved by the Home Office and who has issued you a certificate of sponsorship with information about the role you have been offered in the UK.
The job must also be included in the list of eligible occupations and the salary must comply with minimum wage rules. You must also prove your knowledge of the English language.
You can apply for the visa online within three months of starting work. The visa can last up to 5 years, after which a renewal may be necessary (Immigration Rules, Appendix Skilled Workers).
You can apply for a T5 Temporary Worker – International Agreement Worker visa if you have an employment contract covered by international law (for example the TCA EU-UK, Title II or GATS).
Providing a service as a contractual service provider or as an independent professional falls under this situation. Your client must have been approved by the Home Office and they issued you a certificate of sponsorship with information about the activity you are performing in the UK.
In the case of services covered by the TCA EU-UK, the duration of the visa is equal to the duration of the activity indicated on the certificate of sponsorship (plus 14 days) but cannot exceed 12 months (Immigration Rules, Appendix T5 (Temporary Worker).
You can apply for the Intra-company Visa if your employer has assigned you a position in the UK and your working relationship has lasted for more than 12 months (or if your annual salary exceeds a certain threshold).
The UK employer must be approved by the Home Office and have issued you with a certificate of sponsorship with information about the role you have been offered in the UK. The salary must also exceed a certain threshold.
The visa lasts for the duration of the employment contract or 5 years (whichever is shorter).
(Immigration Rules, Appendix Intra-Company Routes)
EU workers already working in the UK on 31 December 2020 do not need to apply for a visa, as they can ask this permit if they have been working continuously in the UK, going to the UK at least once every 12 months, without living there habitually (they have spent less than 180 days in the UK in each 12-month period; they have returned to their country of residence at least once every 6 months or twice every 12 months).
The work activity must generate income in the UK and be “real and effective”.
Posted workers from an EU country for a short time do not fall into this category.
In general, the worker’s remuneration is taxable in the country where he carried out the related work activity. There are exceptions.
Under the Italy-United Kingdom Convention (Art. 15) remuneration is taxable in the country of residence under three conditions: the employee has stayed in the other country for no more than 183 days of the tax year, he is paid by an employer who does not reside in that country, the remuneration is not paid from a permanent establishment or a fixed base that the employer has in the other country.
Regulation EU 883/2004 continues to apply to EU workers, whose posting to the UK was already in progress on 31 December 2020, as long as this situation does not end. Certificates of posting and A1 certificates issued with an initial date before 31 December 2020 and ending after that date remain valid.
For such situations, on the expiry of the certificate, it will be possible to request a new posting without interruption, in accordance with Regulation EU 883/2004.
The EU-UK TCA regulates social security coordination after Brexit through a special protocol – the Protocol on Social Security Coordination (PSSC).
There are numerous elements in common between the PSSC and the EU Posting of Workers Regulations. While in the abstract the legal basis has changed, in practice much of the compliance has remained the same.
The PSSC provides that the posted worker remains subject to the social security legislation of his home state if the duration of the posting does not exceed 24 months and he is not sent to replace another worker already posted (Art. SSC 11).
Compared to Regulation EU 883/2004, the PSSC no longer provides for the possibility of extending the ordinary duration of the posting (24 months), nor for concluding agreements derogating from the general rules for determining the applicable legislation (Art. SSC. 10).
The PSSC (Art. SSC. 12) reproduces the provisions contained in Article 13 of Regulation EU 883/2004, while adding special criteria for the application of UK legislation (paras. 5 and 6).
The PSSC also reproduces the regulatory framework of Regulation 987/2009 with some minor changes. The employer informs, possibly in advance, the social security institution of the State whose legislation is applicable (Art. SSCI. 14), which issues a certificate of applicable legislation indicating the date and conditions (Art. SSCI. 16).
The new PSSC certificate could be combined with the A1 certificate. In any event, pending the end of the transitional period, all forms and documents issued by the competent institutions will remain valid in the format used for compliance with EU legislation (Art. SSCI. 75).
The A1 documents will therefore continue to be used for certification of the applicable legislation during the transitional period.
If your activity is considered a permanent establishment, your company potentially becomes subject to UK taxes, therefore to UK tax and regulatory obligations (tax returns, financial statements, accounting records).
One of the most relevant effects is the taxation of employment income of all workers deployed in the permanent establishment in the UK, even if they are employed abroad (e.g. Italy-UK Convention, Art. 15, c. 2 l. c). A&P may assist you in identifying which taxation you are subject to.
The concept of permanent establishment is defined in the bilateral conventions on double taxation (e.g. Art. 5 of the Conventions between the UK and Italy, France, Germany) and gives rise to tax and regulatory obligations for the company.
Construction and assembly sites whose term exceeds that provided for in the bilateral convention between the UK and your country also constitute a permanent establishment.
This term, for istance, is 12 months for the agreements that the UK has with Italy, France and Germany.
A permanent establishment is also present when an agent of the enterprise habitually exercises in the other state the power to conclude contracts in the name of the enterprise, if these contracts are not limited to the purchase of goods.
The rules for driving vehicles in the UK are different depending on whether your licence and insurance were issued in an EU or non-EU country.
As per UK Government guidelines, it is possible to continue to drive in the UK with an EU country licence and proof of motor insurance (the insurance Green Card or a document with the name of the insurer, registration number of the insured vehicle and duration of insurance cover).
As per UK Government guidelines, you can continue to drive in the UK with a non-EU country’s licence for a period of 12 months after your last entry into the country.
If the vehicle is a lorry, only the foreign-registered lorry with which you entered the UK can be driven.
If your country in in the Green Card agreement, you need to bring that with you, otherwise you need to re-insure yourself in the UK.
The United Kingdom offers its citizens universal health cover. The cover extends to all foreign nationals with permanent residence or who enter the country Visa-free or with a Visitor Visa.
For longer stays, you may need the IHS (immigration health surcharge) when applying for a visa in order to be covered by the NHS, or submit additional documentation to get exempted. There are differences in access to healthcare between England, Scotland, Wales and Northern Ireland.
For posted workers posted of EU companies, if they enter the UK without a visa or with a Visitor Visa (so for less than 6 months), they can access UK healthcare with their EHIC card. If another visa is required, the worker may be asked to pay the IHS along with the visa.
In that case, the worker can register online an S1 certificate issued by his State, so as to be covered by the NHS without any surcharge or obtain a refund of any additional fee paid with the visa (TCA EU-UK, Art. SSC. 17, SSCI. 21 et seq.).
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