Delegation of employees to work abroad
Current law does not provide any special regulations for an employer in Poland delegating an employee to perform work abroad, but delegation abroad may be carried out on the basis of the general regulations of employment law.
Generally little doubt is raised concerning delegation of employees to work abroad for brief periods of up to a few weeks to perform occasional tasks required by the employer. Such brief delegation is most closely governed by the regulations concerning business travel under Labour Code Art. 775.
Questions do arise, however, in the case of delegation of employees to work abroad for longer periods, particularly for a period exceeding 3 months to perform work abroad on a daily basis, for example through secondment of the employee. As a rule, such delegation should not be treated as business travel, which covers the performance of specific one-off tasks requested by the employer rather than work on a regular, ongoing basis. As a practical matter, such delegation involves a change in the material terms of the person’s employment (and even pay) for a longer period (often exceeding 3 months within a calendar year, which is the maximum period under Labour Code Art. 42 §4 for which an employee may be assigned different work without the necessity to amend the existing terms of the employment contract).
In cases of delegation of employees to perform everyday work abroad for longer periods, the delegation and the related conditions should be agreed with the employee. Whether work is to be performed for a Polish employer abroad, or for a foreign entity as part of services provided between the entities, the employer in Poland should conclude an agreement with the delegated employee governing the rules of the delegation and thus temporarily modifying the terms of the employment contract. The regulations generally do not provide for any other way to delegate employees to work abroad under such circumstances while maintaining active employment status with the Polish employer (without granting unpaid leave to the employee in Poland, with the employee then being hired directly by the foreign entity).
The conditions for the delegation included in the agreement must reflect the minimal conditions for employment in the country where the employee is to be sent. The employer in Poland is also required to comply with all occupational health and safety requirements with respect to the delegated employee, including assuring proper working conditions at the place where the work is performed.
In addition, when the work is to be performed abroad for the Polish employer but on behalf of a foreign entity as part of services provided between the entities, for the legality of the delegation and also for purposes of social insurance and tax considerations, the Polish employer and the foreign entity should conclude a relevant service agreement.
When delegating employees to work abroad, it is also important to pay attention to issues of social insurance coverage and taxation of income earned in the country in question, in accordance with the period and conditions of the delegation.
Magdalena Świtajska, Employment Law Practice, Wardyński & Partners