In detail

Introducing the tried-and-tested option of exceptional agreements

The Specialised Committee on Social Security Coordination shall decide to introduce individual agreements providing exceptions from the applicable legislation. The Specialised Committee has this option under Article 8(4) of the Trade and Cooperation Agreement: it may decide modifications to Annex SSC-7 to the Protocol on Social Security Coordination by written procedure. This has the advantage that the Agreement itself does not need to be amended; amending the Agreement is not politically feasible.

Individual exemption agreements between the competent national social security institutions provide a concrete remedy and offer the best practical solution. They enable posted workers to remain in the German social security system beyond 24 months, thereby avoiding issues particularly in accident and unemployment insurance. Furthermore, the existing IT infrastructure can continue to be used to apply for individual exemption agreements. The individual exemption agreements also ensure that posting to the UK is treated on an equal footing with the other bilateral agreements on the coordination of social security. Exemption agreements were already common practice before Brexit and continue to apply in bilateral social security agreements with third countries. The social security agreement between Switzerland and the UK of 9 September 2021, for example, also provides for this possibility (Art. 17).

In practice, the conditions for posting as defined in the Protocol on Social Security Coordination are very often not met: in business practice, assignments abroad last longer than 24 months, or a previously posted person needs to be replaced.

As a result of this situation, posted workers are no longer subject to German social security law. They lose access to statutory accident and unemployment insurance in Germany. At the same time, accident insurance cover in the UK is not reliably guaranteed in individual cases and may be entirely absent or only partially in place. This increases liability risks for companies and reduces the social security protection of employees.

Consider an alternative solution based on practical case groups

Should it not be possible to introduce the tried-and-tested option of exemption agreements, an alternative solution that can be implemented at short notice is required: a case-group-based approach. This must be based on clearly defined and objectively verifiable posting scenarios. In particular, the following cases must be considered:

• it should be possible to extend the maximum posting duration from the current 24 months to a maximum of 60 months in the event of unforeseeable circumstances;
• it should be possible to extend the maximum posting period from the current 24 months to a maximum of 60 months for the posting of managers and specialists;
• in critical key positions, it should be possible to replace posted workers if it is not possible to interrupt their work;
• atypical posting arrangements with an ongoing employment law component, such as host-based models with a local UK employment contract, should be taken into account; for this group of individuals, a maximum posting duration of 60 months should be permitted.

It is crucial that such case groups are systematically treated as exceptional circumstances within the existing coordination framework. Furthermore, the tried-and-tested assessment and IT structures must be used as the basis for the rapid implementation of a case-group procedure. New parallel procedures or additional administrative burdens must be avoided.

This solution does not fully replace individual exemption agreements, but offers a pragmatic alternative, the success of which depends largely on the rapid availability of the necessary IT infrastructure. It enhances legal and planning certainty and avoids unnecessary system changes.