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BREXIT: applicable legislation to the posted employee

By April 28, 2021 No Comments
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EU / UK Trade and Cooperation Agreement (“TCA”) is applicable from January 1th, 2021 (term extended to April 30, 2021 with decision no. 1 of 23 February 2021 of the Partnership Council).

This agreement defines the legislation applicable to the case of EU / UK employees posting.

With Circular no. 71 of April 27, 2021, the INPS (Italian Social Security Service) provides specific information.

General criterion (Art. SSC.10)

A person who works in a State is subject to the legislation of that State (where employer has its legal office/workplace).

Exemption for posted employees (Art. SSC.11)

Posted employees remain subject to the legislation of the original state if:

  • The duration of the posting does not exceed 24 months
  • The posting does not take place to replace another previously posted worker

Memberships

The EU must notify to UK the list of States that:

  • Category A: accepts the exemption
  • Category B: does not accept the exemption
  • Category C: does not send any response

Please note that the Italian Labor Ministry has asked for the inclusion of Italy in category A.

Posting in two or more states (Article SSC.12)

Employee posted in several countries (EU and UK) is subject to:

  1. Legislation of the state of residence if she/he exercises most of the activity there
  2. Otherwise (in general) the legislation of the State where the employer has its registered office/workplace

Employee posted to multiple countries (EU only) is subject to UK legislation if:

  • Employer has its registered office in the UK
  • The employee resides in the UK and the employer is based outside the EU