Managing international business travel during coronavirus and Brexit

Author: Louise Haycock and Heidi Cook, Fragomen

International travel has become an integral part of how many organisations conduct their business. However, the coronavirus (COVID-19) pandemic has made business travel increasingly complex, and the end of the Brexit transition period could complicate it further. Louise Haycock and Heidi Cook of Fragomen outline the key issues that employers need to consider when employees undertake international travel for work.

The impact of coronavirus

The UK has not shut its border during the coronavirus pandemic. This means that, in theory, anyone has been able to travel to the UK for all of 2020. However, while the border remains open, travel to the UK has been subject to changing restrictions since the advent of the pandemic.

The Government introduced a 14-day quarantine period for those entering the UK from Monday 8 June 2020, unless the traveller fell into a limited pool of exemptions. In early July, the Government unveiled plans for so-called "travel corridors", which allow anyone travelling to England not to have to self-isolate if they travel from what are deemed low-risk countries (the devolved administrations in Wales, Scotland and Northern Ireland developed their own similar but not identical rules).

Crucially, travel corridors take into account not just where a person travels from but also where they have been for the last 14 days. For example, if an individual travels to France (no travel corridor at the time of writing) then Germany (travel corridor exists at the time of writing) for seven days, then the UK, they would need to quarantine for 14 days on arrival in the UK.

The Government has also introduced regional travel corridors, allowing for a more localised approach to be taken. For example, at the time of writing, the current rate of infection on certain Greek islands is considered too risky, but mainland Greece is still considered safe.

Also in early July, the Foreign, Commonwealth & Development Office (FCDO) released a separate list of countries that it deemed safe for people to travel to. There are sometimes discrepancies between this list and the travel corridor list. The optimum scenario for business travellers is when the country they are travelling from or to appears on both lists. The unpredictability of the coronavirus pandemic means that both lists have at times been subject to change at a moment's notice, leaving travellers with very little time to make alternative arrangements.

Employers and business travellers must also be alert to some less obvious potential nuisances. Just because a country appears on the travel corridor list does not necessarily guarantee that a British citizen will be allowed to enter. For example, New Zealand and Australia appear on the list, but at the time of writing both countries have closed their borders to non-citizens.

Therefore, during these unprecedented times, before travelling, employers and business travellers must check the entry requirements of their destination country as well as their home country's arrangements on return, and make sure that their plans include how to accommodate these restrictions as well as any last-minute change in either home or host country requirements.

Brexit

Employers are also becoming increasingly concerned about how the end of the Brexit transition period will affect business travel in Europe.

From 1 January 2021, British citizens will lose the beneficial travel and work rights that come with EU membership. Business travellers have become accustomed to conducting work visits to Europe without needing to consider the type of activities that they will be conducting and the amount of time spent performing those activities.

However, without free movement rights, a British citizen will default to the standard position of a non-EU citizen. From the new year, employers will need to assess the activities that employees propose to conduct during business trips to ensure they fall within an exemption to the work permit rules of the host country. This can be complex, as each country within the EU and the Schengen area sets its own rules, meaning that activities may be permissible in one country but not in another. If no exemption applies, a work permit will be required, resulting in additional time and cost considerations for employers.

An added complication is that British citizens visiting Europe will be able to spend only 90 days in every 180 in the Schengen area (including business and leisure travel). Employers will need to support their employees in monitoring this and ensuring there are no compliance breaches.

Other compliance concerns

Various other compliance requirements have an impact on international work travel.

The Posted Workers Directive (96/71/EC) seeks to protect workers' rights and curb companies from profiteering from more advantageous labour and social security arrangements in the host country. Further, notification requirements apply to employers whenever they assign certain employees to work temporarily in the EU to provide services to local clients or affiliate companies on their behalf.

The Directive has not been applied uniformly across member states, and fines for non-compliance vary. In certain member states, according to a strict interpretation of the Directive, business travellers may fall within the category of posted worker.

Therefore, it is important that employers know where an employee is travelling to and comply with the relevant requirements in relation to that visit.

Employers must also ensure that they meet social security obligations when employees travel abroad for work; member states are ramping up efforts to enforce compliance with social security obligations.

Business travellers should be in possession of an A1 certificate confirming which country's social security legislation applies to them each time they engage in cross-border work activities, including one-day business trips. Without an A1 certificate, they could be denied access to a work site or be required to stop working. Again, enforcement and penalties for non-compliance differ significantly among EU member states.

Whether or not UK-based employees remain subject to posted worker and EU social security rules from 1 January 2021 will depend on the outcome of the Brexit trade negotiations currently in progress.