Working and ordinarily working in the UK

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1 Financial institutions Energy Infrastructure, mining and commodities Transport Technology and innovation Life sciences and healthcare Working and ordinarily working in the UK Briefing January 2015 Introduction When an employer s staging date arrives, it must assess its employees 1 for autoenrolment. An employee must be: within the auto-enrolment age range; earning a minimum amount; and working or ordinarily working in the UK. 2 This briefing looks in detail at the third requirement 3 works or ordinarily works in the UK. 4 It most cases it is quite clear to an employer whether their employee works in the UK, but, particularly in the case of multinational groups of companies, which have employees who are constantly moving globally between employers and locations, it can be difficult to assess for auto-enrolment purposes who is working or ordinarily working in the UK. The most important factor is where the employee is based. 1 This Briefing does not look at the question of who is an employee, or what type of scheme may be used for autoenrolment. 2 The Pensions Act 2008, section 1, refers to Great Britain, we have used the more commonly used UK in this Briefing. 3 This Briefing does not consider the age or earnings requirements. 4 Pensions Act 2008, section 1.

2 Overseas or UK employer? It does not matter. Auto-enrolment duties apply equally to an overseas and a UK employer (this usually means a UK registered company). Therefore an overseas employer will need advice on its auto-enrolment duties. Overseas or UK national employee? It does not matter. Auto-enrolment duties apply equally to a non UK national as well as to a UK national, as long as the employee is working or ordinarily working legally in the UK. Seafarer or Offshore Worker? An offshore worker in UK territorial waters or in connection with the exploration of the sea bed or subsoil, or the exploitation of their natural resources, in the UK sector of the continental shelf, (including the UK sector of a cross-boundary petroleum field), is considered to be ordinarily working in the UK. A seafarer is a person who works in any capacity on a ship or hovercraft. A seafarer who works solely in UK territorial waters is considered to be working in the UK. 5 A seafarer is a person who works in any capacity on a ship or hovercraft. A seafarer who works solely in UK territorial waters is considered to be working in the UK. A seafarer who works outside UK territorial waters may be considered to be ordinarily working in the UK, depending on where the seafarer is based. Working in the UK An employee whose contract of employment bases him in the UK is working in the UK. Occasional business trips outside the UK do not count. An employee who has been sent or seconded to the UK by another employer is not working in the UK (see the secondment section below). 5 The Automatic Enrolment (Offshore Employment) Order Norton Rose Fulbright January 2015

3 Ordinarily working in the UK An employee who is not working in the UK may be ordinarily working in the UK. It is more difficult to assess if an employee is ordinarily working in the UK, although the test is still where the employee is based. Assess this by checking the contract of employment, what does it say and how does it operate in practice? If it states that the place of work is in the UK (or if in practice the place of work is in the UK) then the employee is ordinarily working in the UK - except in certain circumstances of secondment (see below). Additional factors Additional factors to consider are: where the employee begins and ends his work each day where the employee s private residence is (or intended to be) where the employer s headquarters is located whether the employee pays National Insurance contributions in the UK what currency the employee is paid in Secondment into the UK If the original employer is outside the UK, and the contract remains with the original employer, and there is also an expectation that the employee will return at the end of secondment, then the employee will not be ordinarily working in the UK. Secondment outside the UK If the contract remains with the UK employer, and there is also an expectation of return at the end of secondment, then the employee will be ordinarily working in the UK. The secondment principles above still apply if secondment continues after its original end date, either by extension, or by secondment elsewhere. Norton Rose Fulbright January

4 Cross-border employee An employee may be a cross-border employee, meaning that his place of work is sufficiently located in another EEA state that his contract is subject to social and labour law of that other EEA state. An employee may therefore have dual status being both a cross-border employee and ordinarily working in the UK for auto-enrolment purposes. In order to accept a cross-border employee as a member, a UK pension scheme would have to comply with complex and costly regulatory requirements 6, including obtaining authorisation and approval from the UK Pensions Regulator. However regulations 7 provide that an employer that uses an occupational pension scheme to meet its auto-enrolment duties does not have to auto-enrol a cross-border employee who would otherwise be eligible under the Pensions Act. Note that the exemption does not apply if the employer uses a personal pension to fulfil its auto-enrolment duties. 6 Occupational Pension Schemes (Cross-border Activities) Regulations The Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations Norton Rose Fulbright January 2015

5 Working or ordinarily working in the UK No need to auto-enrol Status of employee Auto-enrolment duties apply Contract of employment not based in UK Working in the UK Contract of employment based in UK, occasional business trips outside UK Employee seconded to UK, contract remains with original employer, expects to return overseas at the end of secondment Employer decides that employee is not based in the UK. An employee who is not working in the UK may be ordinarily working in the UK Employee seconded outside UK, contract remains with original employer, expects to return to UK at end of secondment Is the employee based in the UK? Employer considers these factors: what does the contract say? where is employee regarded as working? where does working day begin and end? where is employee s private residence? where is employer s headquarters? employee pays NI contributions? employee is paid in sterling? Employer decides that employee is based in the UK. Employee is both a cross-border employee and working or ordinarily working in the UK, and employer uses an occupational pension scheme for auto-enrolment Cross-border employee Employee is both a cross-border employee and working or ordinarily working in the UK, and employer uses a personal pension scheme for autoenrolment Seafarer or offshore worker outside UK waters, but not based in the UK Seafarers and offshore workers Seafarer or offshore worker solely in UK waters/uk sector of continental shelf/uk sector of cross-boundary petroleum field Seafarer or offshore worker outside UK waters, but based in the UK Norton Rose Fulbright January

6 Contacts If you would like further information please contact: Peter Ford Partner Norton Rose Fulbright LLP Tel Lesley Browning Partner Norton Rose Fulbright LLP Tel Norton Rose Fulbright January 2015

7 Global resources Norton Rose Fulbright is a global legal practice. We provide the world s pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia. Our office locations People worldwide 7400 Legal staff worldwide 3800 Offices 50+ Key industry strengths Financial institutions Energy Infrastructure, mining and commodities Transport Technology and innovation Life sciences and healthcare Europe Amsterdam Athens Brussels Frankfurt Hamburg London Milan United States Austin Dallas Denver Houston Los Angeles Minneapolis Moscow Munich Paris Piraeus Rome Warsaw New York Pittsburgh- Southpointe St Louis San Antonio Washington DC * Susandarini & Partners in Association with Norton Rose Fulbright Australia ** Mohammed Al-Ghamdi Law Firm in Association with Fulbright & Jaworski LLP Canada Calgary Montréal Ottawa Québec Toronto Latin America Bogotá Caracas Rio de Janeiro Asia Bangkok Beijing Hong Kong Jakarta* Shanghai Singapore Tokyo Australia Brisbane Melbourne Perth Sydney Africa Cape Town Casablanca Dar es Salaam Durban Johannesburg Middle East Abu Dhabi Bahrain Dubai Riyadh** Central Asia Almaty Norton Rose Fulbright January

8 nortonrosefulbright.com Norton Rose Fulbright Norton Rose Fulbright is a global legal practice. We provide the world s pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia. Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare. Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact. Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ( the Norton Rose Fulbright members ) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients. References to Norton Rose Fulbright, the law firm, and legal practice are to one or more of the Norton Rose Fulbright members or to one of their respective affiliates (together Norton Rose Fulbright entity/entities ). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a partner ) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of the relevant Norton Rose Fulbright entity. The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright. Norton Rose Fulbright LLP NRF /15 (UK) Extracts may be copied provided their source is acknowledged.