As restrictions associated with COVID-19 ease, people’s movement between countries within Europe will become easier. The same is not the case for UK headquartered HR teams’ workloads, writes Steve Black, co-founder and chief strategy officer, Topia. They will have to manage the post-Brexit administration covering employees’ overseas travel. Due to new regulations, HR teams now need to have a greater understanding of where employees are. Non-compliance can mean financial, business, and reputational loss.
The reason? On January 1, 2021, Brexit became a reality in terms of travel regulations. Post-Brexit, the UK is no longer part of the Schengen Agreement. The original treaty was signed in 1985, but in 1999 it was incorporated into European Union law under the Amsterdam Treaty. The UK opt-out included in the treaty was taken advantage of during Brexit. It means that UK employees can no longer freely travel across Europe. Let’s take a look at the new regulations, what could happen if they are not adhered to, and some advice for HR teams.
Today, each employee effectively has 90 days in a rolling 180-day window that they can spend in the Schengen Area countries without a visa. Now, vacation time, as well as weekend time or non-work time, counts towards those 90 days. An employee could conceivably end up in a situation where a two week holiday in France means they have spent too long on the Schengen Area and can't get on a flight to attend a business meeting in Germany the following week. Personal life can therefore prevent you from doing something for work – or vice versa.
While travel to a European country does not always require a visa, there are certain circumstances when a UK citizen may need one. These include
- Staying for longer than 90 days in a 180 day period.
- Transferring from the UK branch of a company to a branch in a different country (‘intra-corporate transfer’), even for a short period
- Carrying out contracts to provide a service to a client in another country in which your employer has no presence
- Providing services in another country as a self-employed person.
Also, UK workers may require a Schengen Area visa, depending upon their nationality – single visa, double-entry visa, and multiple entry visa are available. The right to work in the UK does not mean there is a right to travel to or work within Europe. HR teams need to track when and where employees are both for work and personal time.
There are other regulations that HR teams may need a greater awareness of as enforcement tightens post-pandemic and post Brexit including:
- The Posted Workers Directive
- Working in a foreign country also increases the exposure to the risk of creating a permanent establishment (PE) for local tax purposes. Depending upon the employee’s activities, profits may be taxed in the employee’s country of work as well as the UK. This highlights the need for HR teams to understand where employees are working and what they are doing.
Why is this important
The carrot for many businesses is the revenue they can gain from selling or delivering services to foreign markets. However, failing to comply with regulations will have an impact and may include:
- Fines - Fees of €3k+ could be incurred. The amount will differ depending on the member countries, and some countries are known to impose significant fines, such as Greece.
- Travel bans - A person can be banned for 1-3 years for overstaying their 90-day allowance or 3+ years for overstaying a visa. Not just for one country but the whole Schengen region.
- Deportation - Followed closely by a travel ban
- Difficulties returning to Schengen countries - As database records are shared between Schengen countries, complications will occur upon attempting to re-enter or when applying for a Schengen visa
If the fines and travel bans weren’t enough to spark compliance, the potential reputational damage of having a senior leader banned from Schengen countries is huge. Further, in keeping an eye on business success, a project delivery could be at risk if a consultant is stopped mid-project from travelling. Managing these concerns is a crucial part of capitalizing on international opportunities.
Some things to consider for HR Teams
There are some questions that the UK HR teams need to review regularly to determine how ready your business is to operate abroad:
- Do any employees hold dual citizenship?
- Have you reviewed budgets for international travel?
- Do you have a European entity as a sponsor?
- Can you monitor where your workers are across Europe for business and personal reasons?
- Can you set up training for international travellers and update information on the latest advice?
- What is the healthcare cover for workers abroad?
- Do you have visas in place for employees that require them?
- Is there a process to identify compliance with the posted worker directive?
- Is there a risk of permanent establishment?
What to do
In summary, as travel starts to reopen, UK companies need to be thinking about Brexit compliance in addition to the evolving COVID compliance for travel. They need to be thinking about posted worker notifications and the complexity that creates. They need to consider the permanent establishment risk with employees travelling. Most importantly, they need a method to track employee travel, both personal and business, in a centralised location that can automate the relevant processes and provide warnings around compliance risks, because managing compliance for international travel is becoming increasingly complex.