Omnium Employee Benefits

International peripatetic workers and automatic enrolment

One of the primary assessments when deciding if a worker should be automatically enrolled into a UK workplace pension is whether the individual is ‘ordinarily working’ in the UK.

There is no exact definition of the phrase ‘ordinarily working’ and it is open to each employer as to how they would define this.

For example, some workers are peripatetic, in that they spend a certain amount of time outside the UK as part of their normal working pattern, while others are seconded abroad for a given period of time.

The first issue to consider is where the worker’s primary employment base is located and then to look at a number of other factors, including:

  • Where the worker begins and ends their work.
     
  • Whether their contract of employment is subject primarily to UK legislation.
     
  • Whether they pay National Insurance Contributions and/or tax in the UK.
     
  • What currency they are paid in.


Hence, if a worker usually begins and ends their work in the UK, then they should be treated as having their employment base in the UK and, therefore, as ordinarily working in the UK.

For workers on secondment outside the UK, who would otherwise have been working in the UK, the employer can still enrol the worker if their employment base remains in the UK or if their connection to the UK remains sufficiently strong.

If the worker’s contract remains with the employer located in the UK and there is an expectation on the part of the employer that the worker will resume working in the UK for the UK-based employer at the end of their placement, the worker can be considered to be ordinarily working in the UK.

This is a complex area and clearly open to interpretation. 

To the best of my knowledge, there has yet to be any formal legal ruling, interpreting what the law means by ‘working or ordinarily works in the UK under the worker’s contract’ for the purposes of pension legislation.

At some point, case law may cause the interpretation to change. Therefore, if an employer is having difficulties determining whether a worker is working or ordinarily works in the UK, they should always seek appropriate legal advice.

Get in touch

For advice on automatic enrolment, or any other aspect of your employee benefits package, give me a call on 01483 205890 or email at: tellmemore@omniumbenefits.com

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