Brexit – new social security rules for employers and employees

15 January 2021 / Insight posted in Articles

For businesses seconding or planning to send employees to work temporarily in the EU, the feasibility of transfers will often be driven by costs related to social security, state pension and benefits entitlements, alongside how best to minimise the risks of getting the related cross-border compliance wrong.

Discussions leading up to the UK-EU new trade agreement identified several potential obstacles that had been concerning employers and employees around continued social security coordination. From 1 January 2021, the new rules take away much of this uncertainty. However, they are complex and need to be considered carefully, particularly in terms of the countries involved and length of planned secondments.

What does the Brexit agreement mean for the management of employers’ and employees’ social security contributions and benefits?

The new rules ensure workers who move between the UK and the EU only have to pay into one country’s social security system. The agreement also seems to continue with state pension contribution aggregation that allows all contributions paid in any country to be counted for meeting qualifying periods for certain benefits e.g. state pensions.

The new rules also appear to provide reciprocal healthcare both for short-term trips and longer-term secondments. Although the NHS has continued to issue EHICs to EU nationals resident in the UK, and in general existing EHICs will remain valid until their expiry date, the government has also promised a UK Global Health Insurance Card (GHIC) for UK citizens.

Note that EHICs will cease to be valid in Norway, Iceland, Liechtenstein or Switzerland.

From when do the new rules apply?

The new rules apply from 1 January 2021.

Which countries are included?

The UK and EU countries.

Which countries are not included?

Norway, Iceland, Liechtenstein and Switzerland for which different approaches will be required. There is also a separate agreement for employee moves between Ireland and the UK.

Do the new rules apply to all employee temporary secondments?

The new rules apply to UK national employees seconded to work temporarily in the EU for up to 24 months, and EU national employees seconded to work in the UK for up to 24 months. This only applies where the EU country has agreed to this arrangement.

Each EU country has until 1 February 2021 to agree to this treatment. If an EU country does not agree, contributions would have to be paid into the host country social security system where the work is carried out, but UK NIC would not have to be paid.

As yet, not all EU countries have agreed to this treatment. Employers will need to keep abreast of which countries agree to apply this rule.

What if I want to send employees to work for longer than 24 months?

Before the Brexit agreement, the EU social security regulations allowed home and host authorities to agree continuing home-country coverage for secondments of up to five years. The new rules do not include similar provisions.

For secondments of periods of more than 24 months, in the absence of any separate agreement, you will have to pay into the social security system in the country where the work takes place and not the home country.

It remains to be seen if a similar agreement to extend continuing home-country contributions beyond 24 months is included in any subsequent bilateral agreements that might be reached. There is also no protection for family benefits (including child benefit) and no facility to export unemployment benefits.

What if I have employees who are seconded to work in more than one EU country after 1 January 2021?

The rules for multi-state workers are to remain more or less the same. Employees will be covered by the legislation of the state of residence if they carry out a substantial part of their activity in that state. If this is not the case, employees will most likely fall under the legislation of the country in which their employer is situated.

In the absence of any guidance of what is meant by a substantial part of their activity, it is assumed that substantial means 25% or more of an employee’s work activity. On this basis, the majority of multi-state worker A1s issued before 1 January 2021 will continue to be valid and you should continue to apply for these as necessary.

What if I have employees who were seconded to work in an EU country before 1 January 2021?

The new rules do not apply to secondments or assignments which began before 1 January 2021, provided there is no change in the employee’s circumstances. There is no clarity in terms of what is meant by a change in the employee’s circumstances and it is anticipated this will be clarified in due course.

Current certificates will have an end date and UK NIC should be paid until the certificate expires.

What is the agreement with the Republic of Ireland?

The UK has a separate reciprocal social security agreement with Ireland that enables social security coordination after 31 December 2020 on the same terms currently in place for UK-Irish moves.

What are the different rules for temporary transfers of employees between the UK and Norway, Switzerland, Iceland and Liechtenstein that start after January 2021?

Norway – employees remain in home-country social security scheme for temporary postings of up to three years.

Switzerland – employees remain in home-country social security scheme for temporary postings of up to two years.

Iceland – employees remain in home-country social scheme for temporary postings of up to one year.

Liechtenstein – has no special rules and there is a possibility of double social security contributions. Any secondments from the UK would need to pay UK NICs for the first 52 weeks.

Will Coronavirus have any impact on the new rules?

Coronavirus has temporarily caused a collapse in the global movement of workers, as most countries have placed restrictions on entry from the UK.

It is only once restrictions are lifted and movement of workers is refreshed that we will see how countries apply any exemptions or clarify some details that are too general at present to be sure of how they likely to be implemented.

As a result, although we have a new set of rules, you should anticipate some confusion over the next few months as rules are developed and further agreement reached between the UK and individual states.