An employer is liable on behalf of (www.practicallaw.com/9-200-3629) for the illegal acts of its employees, even if they are seconded to another organization. However, the host may also be held liable on behalf of the actions of the seconded person, although he remains employed by his original employer depending on the circumstances – for example, who had control over the seconded person at that time. An employee`s contractual right to leave cannot be restricted without his or her consent. In general, the parties agree that the seconded person is entitled to annual leave, as specified in the employment contract. However, the employer and host must determine how leave requests are to be handled during posting, by . B to whom requests for leave must be submitted for approval. There are a number of different terms used to refer to the three parties involved in a detachment. This section assumes that the secondment is with another organization, that the original employer (or seconded employer) is called “employer” or “dismantler”, that the employee can also be called “seconded” and that the organization that is to use the services of the seconded person is called a “host”. Workers who plan to move abroad must follow these guidelines for posting agreements: even if the posted person does not become an employee of the host, they can be considered an “employee” of the host (www.practicallaw.com/6-200-3640).
This term appears in various legal provisions and is defined as a person who works under a (employment contract or other) in which he undertakes to work personally for another person who is not a client or client of a profession or business carried out by the person. If it could be established that the seconded person is the host`s employee, there are a number of legal rights of the workers that he would have vis-à-vis the host. In determining who assumes responsibility for the seconded person, it is important to determine their status, i.e. whether they are an employee, employee or independent contractor (less likely) of the seconded person and/or host. This will affect the statutory rights of workers, how a payment is imposed, what health and safety obligations apply and the extent to which there is a duty of care towards the posted person. The question of who the employer is is important, especially for the host. Indeed, the law imposes a number of responsibilities on an employer and a number of rights on the employee. Detachment usually means the resolution of a person from their usual organization for a temporary assignment to another location. Display modalities are used in many different situations. For example, for a certain period of time (usually between three and twelve months), companies can send employees to their customers or customers on a secondment basis to work within the customer`s organization. Expatriate assignments are also often set up in the form of assignments, both for assignments within a group of companies and between independent companies. The displayed person also wants to be protected from the host, who employs the displayed person directly at the end of the posting period or who competes with the displayed person based on the information received during the posting.
The seconded person can assert the usual work claims against the display. If it also turns out that they have become the host`s employees during the period of secondment, they can assert the corresponding claims at the end of the secondment (even if they return to work for the secondment). However, you need a reasonable amount of uninterrupted engagement with the host. If it is possible to make a dismissal, it is necessary to determine the duration of the dismissal and whether the seconded person will have the opportunity to serve the notice period in order to terminate the posting or simply his or her employment relationship with the posting. In order to avoid the risk of the seconded person becoming the host`s employee, the parties should ensure that: if the disclosure concerns disclosure of information outside the European Economic Area, the seconded entity must ensure that adequate protection exists and may need to include specific provisions in the posting agreement. A “secondment” is the process by which an employee moves to another company for specific purposes for a certain period of time. Assignments can take place nationally and internationally. At Cantwell & Goldman PA, our international business lawyers can prepare posting agreements on behalf of foreign and U.S. employers, as well as review and negotiate posting agreements on behalf of senior executives. There will be certain circumstances in which the secondment must end with immediate effect. The agreement may specify certain events that lead to termination, such as the seconded person.B misconduct or a long-term illness.
There are certain essential conditions that an employer and a host must take into account when concluding a posting agreement: In most cases, the agreement involves the posting of a specific person. However, if the assignment officer or host chooses the employee to provide the services, the process must be carried out in the same manner as a normal recruitment. Ideally, the agreement determines the duration of the secondment. There are other circumstances in which the parties wish to provide for the termination of the contract. For example, the parties must check whether they should terminate the contract in the event of a mandatory impossibility of performance or by termination for breach of contract or whether the seconded person proves to be unfit for work. The parties may also provide for cancellation by notification or by appointment. The employer and the host must determine who is responsible for the remuneration of the seconded person for the duration of the secondment. If the employer agrees to pay the seconded person, the employer and the host must negotiate the terms and manner in which the host pays for the services of the seconded. The parties must also determine who, if any, is responsible for the payment of the costs incurred by the seconded party during the provision of the services. Unless otherwise agreed, the contractual agreements between the employer and the seconded person on old-age provision and medical assistance remain unchanged.
It is important to enter compensation and benefits agreements as accurately as possible to avoid disputes. Regardless of the legal situation, the secondment and the host may contractually agree on who bears the costs of responsibilities to the seconded person (e.g. B for its health and safety) and for the actions of the posting during the posting, and include appropriate compensation in the agreement. A posting agreement should indicate that the seconded party complies with the host`s policies and procedures. Discipline remains the responsibility of the employer. However, a violation of host policies requires the host`s cooperation for the purposes of a disciplinary hearing. An international posting is the cross-border transfer of the posted worker to an international company. A formal agreement, called a “secondment agreement” between the employer, assignment and host, is required to govern the relationship between the employer, assignment and host. The posting agreement must take into account the laws of the employer`s country and the host country. Net Lawman offers two models of secondment contracts for commercial and non-commercial organizations.
The host must ensure that the detached person can be compelled to perform all the work he is likely to perform during the secondment and must therefore try to identify likely changes in the work required during the period. The host will ensure confidentiality, in particular with regard to the information that the seconded person may receive during the secondment, the request of its staff and the risk that the seconded person or the seconded person may be put in competition. .
Recent Comments