Applicable labour law: employment by a foreign employer (British or Belgian)

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    The withdrawal agreement will enter into force on 1 February 2020 and provides for a transition period until 31 December 2020.

    The question of applicable labour law arises both in the context of temporary employment (posting) and in the context of permanent employment of an employee in Belgium by an employer established in the United Kingdom - or vice versa, the temporary or permanent employment of an employee in the United Kingdom by an employer established in Belgium. 

    In such situations, there may be a conflict of law between the labour law applicable in the country where the employer is established (e.g. the United Kingdom) and the labour law applicable in the country where the employee performs his services (e.g. Belgium). 

     

    During the transition period (from 1 February 2020 to 31 December 2020)

    The European rules remain fully applicable in the United Kingdom during this period.
     

    • Temporary employment (posting) 
       

    This concerns the temporary employment of an employee in Belgium or in the United Kingdom by a foreign employer (British or Belgian).


    This temporary employment is a posting of workers within the meaning of Directive 96/71/EC.

    As mentioned above, European law will continue to apply during the transition period. Consequently, nothing will change during the transition period in terms of posting (see below).

    • In the case of posting of workers from the United Kingdom to Belgium and with regard to labour law, the Belgian posting Act of 5 March 2002 is applicable.

     

    This Act transposed Directive 96/71/EC regarding posting into Belgian law. More information can be found on the following web pages:
     

     

    • In the case of posting of workers from Belgium to the United Kingdom, the United Kingdom liaison office should be contacted regarding the terms and conditions of employment, remuneration and employment to be applied.

     

    •   Permanent employment 

    This is the situation where an employee is permanently employed in Belgium or in the United Kingdom by a foreign employer (British or Belgian).
    In the case of permanent employment, the Labour law to be applied shall be determined on the basis of private international law, i.e. essentially European Regulation 593/2008 "Rome I".

    Here too, European law will continue to apply during the transition period, so that nothing will change in the Rome I Regulation until 31 December 2020 (see below).
    The general principle of the Rome I Regulation is that the contractual parties may choose which Labour law applies to the employment contract (see Articles 3 and 8 of the Rome I Regulation)
     

    • However, as provided for in Article 8 of the Regulation Rome I, the choice of the law by the contractual parties cannot deprive the employee of the protection afforded to him by the provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable in the absence of such a choice, it is to say the provisions that cannot be derogated from by agreement of :  
       
    1. the law of the country in which or, falling that, from which the employee habitually carries out his work in performance of the contract; or
       
    2. falling that, the law of the country in which the place of business through which he was engaged is situated;
       
    3. if it appears from the circumstances as a whole that the employment contract is more closely connected with another country, the law of that other country.

     After the transition period (from 1 January 2021) 

    •       Temporary employment (posting) 

    This concerns the temporary employment of an employee in Belgium or in the United Kingdom by a foreign employer (British or Belgian).
     In the case of posting from the United Kingdom to Belgium, the Directive 96/71/EC expressly provides that undertakings established in a non-Member State must not be given more favourable treatment than undertakings established in a Member State. As the legislation currently stands, the Belgian Posting of Workers Act of 5 March 2002 will continue to apply after the transition period in the case of posting from the United Kingdom to Belgium. In the case of posting from Belgium to the United Kingdom, the extent to which it will still be possible to post workers to the United Kingdom after the transition period will depend on the agreements that will be made in this context between the European Union and the United Kingdom.

     

    •      Permanent employment  

    This is the situation where an employee is permanently employed in Belgium or in the United Kingdom by a foreign employer (British or Belgian).  

      Permanent employment in Belgium  
     
    As regards the permanent employment of workers in the European Union by British employers, the draft withdrawal agreement does not contain any provisions.
    However, even in the absence of specific provisions to this effect in the withdrawal agreement, the Rome I Regulation remains applicable on the territory of the European Union, even if the parties of the employment contract have opted for the law of a third country.
    In the case of permanent employment in Belgium by a British employer, the Rome I Regulation will apply. For example, in the event of a dispute before a Belgian court, the court will apply the Rome I Regulation even if both parties to the employment contract have opted for the application of British law. 
       

    Permanent employment in the United Kingdom


    In this case, the withdrawal agreement provides only that the Rome I Regulation will continue to apply to agreements concluded before the end of the transition period.  

    As regards employment contracts concluded after the end of the transition period, the Rome I Regulation will no longer apply in the United Kingdom. In such a case, it will be necessary to determine what working conditions will apply in the United Kingdom under British law.