Secondment is becoming increasingly popular and is most often seen in the commercial sector where companies are keen to maximise the various skills and interests of their staff.
The opportunity to go on secondment is the differentiating and decisive factor in a prospective recruit joining one company over a competitor.
There are potential benefits to secondment for both employers and employees. For an employee (the secondee), it’s the opportunity work in a different office or environment, a different company, a different city or even a different country.
This may afford them the chance to develop their existing skills, acquire new skills or experience and advance their careers. For employers (the seconder), it can be a favour to an existing client or a means of attracting a prospective client, it could be part of the employer’s added value to service its clients or a mutual benefit to both the employer and the organisation to which the employee is to be seconded (the host). However, there are several practical issues (both commercial and employment-related) that all parties - the seconder, secondee and host - need to consider before entering any secondment arrangement.
It may be that the secondment opportunity arises out of a decision to second a particular individual. However, if the seconder or the host have simply reached an agreement that an employee (rather than a specific employee) will be seconded, a proper recruitment process should be carried out to reduce the risk of discrimination claims and/or a disgruntled workforce.
Employment contract and documenting secondment.
The employer should consider whether the employee’s existing employment contract contains a contractual right to second? If there is no contractual right, the employer will need to get the employee’s consent to vary their contract in order for them to be seconded. Even where there is a contractual right, it would make sense to get the employee’s consent regardless.
The parties should document the terms of the secondment, not only between the seconder and secondee, but also the host.
Who is the employer?
The central basis of any secondment is that the seconder remains the secondee’s employer; the employee does not become employed by the host. It is imperative however that the commercial reality reflects the terms of the agreement.
In order to demonstrate that the seconder remains the secondee’s employer, it is key that the legal relationship is, and remains, between the seconder and secondee, rather than the host and secondee. Therefore, the seconder should:
- remain in charge of the secondee and be responsible, as much as possible, for the provision of the secondee’s day-to-day work and duties;
- remain in charge of any appraisals, as well as any disciplinary or grievance investigations;
- minimise the duties the secondee and host owe to each other; and
- require that the host clearly marks the secondee as a secondee, so they do not become integrated into the host’s organisation as one of its employees.
There is a real and potentially costly risk (to the seconder) that a secondee could otherwise become an employee of the host.