Delegation and Secondment: Key Concepts in Employment Law

Delegation and secondment are two concepts that are increasingly prevalent in the labor market, allowing an employer to unilaterally change an employee’s workplace as specified in their individual employment contract. However, it is important to note that there are significant differences between delegation and secondment, with the clarification that the employee retains their position and all other rights outlined in their individual employment contract during both delegation and secondment.

What is Delegation?

According to the Labor Code, delegation refers to the temporary exercise, at the employer’s discretion, by the employee of tasks or duties corresponding to their job responsibilities outside their workplace.

Duration of Delegation

Delegation can be arranged for a maximum period of 60 calendar days within a 12-month period and can be extended for successive periods of up to 60 calendar days only with the employee’s agreement. An employee’s refusal to extend the delegation cannot be grounds for disciplinary action against them.

The delegated employee is entitled to transportation and accommodation expenses, as well as a delegation allowance, under the conditions stipulated by law or the applicable collective labor agreement.

What Employers Need to Know About Delegation

Delegation involves changing the workplace while keeping all other elements of the employment contract unchanged. It can occur either in the same locality or in another locality within the same unit, a subunit, or another unit. However, not all travel constitutes delegation for the employee.

Delegation can occur within the same unit, to a component unit, a subunit, or another unit.

What Employees Need to Know About Delegation

According to the Labor Code, the measure of delegation is an act of labor law and not an administrative act that is obligatory for the employee, who will face disciplinary action for unjustified refusal to comply.

Given that delegation is mandatory, an employee’s refusal to comply constitutes a breach of their job responsibilities and may lead to disciplinary action, including termination of the employment contract.

What is Secondment?

According to the Labor Code, secondment is the act of temporarily changing the workplace at the employer’s discretion to another employer for the purpose of performing work in their interest. Exceptionally, secondment can also change the type of work but only with the written consent of the employee.

Duration of Secondment

Secondment can be arranged for a maximum period of one year. Exceptionally, the secondment period can be extended for objective reasons that require the employee’s presence at the employer to whom they have been seconded, with the agreement of both parties, every six months.

An employee may refuse a secondment arranged by their employer only in exceptional cases and for compelling personal reasons.

The seconded employee is entitled to transportation and accommodation expenses, as well as a secondment allowance, under the conditions specified by law or the applicable collective labor agreement.

What Employers Need to Know About Secondment

Employers who arrange a secondment for an employee should know that the individual employment contract initially concluded with the employee is suspended during the secondment concerning essential effects, being temporarily ceded to the employer to whom the employee has been seconded.

According to the Labor Code, it is understood that secondment can only take place for a vacant position or one whose holder is temporarily absent.

The employer who arranges the secondment is obligated to take all necessary measures to ensure that the employer to whom the secondment has been arranged fulfills all obligations to the seconded employee fully and on time. If the employer to whom the secondment has been arranged fails to meet their obligations, those obligations will be fulfilled by the employer who arranged the secondment.

If there are discrepancies between the two employers or if neither fulfills their obligations, the seconded employee has the right to return to their original workplace with the employer who seconded them, to address either of the two employers, and to seek enforcement of unmet obligations.

The termination of the seconded employee’s individual employment contract by mutual agreement requires the agreement of the employer who arranged the secondment.

What Seconded Employees Need to Know

According to the Labor Code, the rights due to the seconded employee are provided by the employer to whom the employee has been seconded, with the stipulation that during the secondment, the employee benefits from the most favorable rights, whether from the employer who arranged the secondment or the employer to whom they are seconded.

Secondment is a mandatory measure for the employee, who will face disciplinary action for unjustified refusal to comply.

The seconded employee is subordinate to the employer to whom they have been seconded.