Secondment and delegation are two similar but different legal options at the same time, by which an employee’s place of work, as specified in the individual employment contract, can be changed.
This change is carried out by the employer, unilaterally, and only in accordance with art. 42 paragraph (1) of the Romanian Labor Code. During the entire period, regardless of whether we are talking about secondment or delegation, the employee retains the same position as well as the same rights as specified in his employment contract.
Such change in workplace will always have a temporary character and in no case will it be for an indefinite period. Even though both notions have some similarities, there are substantial legal differences that we all need to be aware of.
This helps us apply the two concepts as well as possible in practice.
Secondment versus delegation
To be able to differentiate between secondment and delegation, it is very important to know exactly what each one means as per the Romanian employment law. Therefore, we will discuss both concepts in more detail below.
What is the delegation?
Delegation represents a specific situation under which the employee exercises certain tasks that are part of his job responsabilites, at a workplace other than the one established by the contract, for a determined period of time, and at the disposal of the employer. The delegation must first of all be justified by the interest of the business, including the nature of the job performed by the employee, and is mandatory for the employee. It is important that the delegation arrangement does not have an abusive nature for the employee.
During the period of delegation, the parties of the employment agreement remain the same and the employee remains subordinate to the same employer. In addition, the employee will continue to be both disciplinary and liable to the employer. If the employee causes certain damages at the workplace where he is delegated, then the legal representative of the host unit has two options:
Maximum period for delegation
As per the provisions of the Romanian Labor Code, the maximum period for delegation is 60 calendar days within a year. This period can be extended, but only for successive periods of maximum 60 calendar days.
If such an extension is desired, it is necessary for the employee to give his consent. If he does not agree to the extension, then his refusal cannot be considered a disciplinary offense. Thus, any extension of the delegation can only be done with the consent of both parties.
In addition to the rights mentioned in the individual employment contract, the employee is also entitled throughout the period of delegation to the settlement of expenses in terms of accommodation and transport, as well as to a delegation allowance (per diem).
What is the secondment?
The secondment (or posting) is the act by which the employer decides the change of the workplace for an employee, for a determined period of time. The change of workplace is carried out at the initiative of the employer, the purpose being the execution of some projects in the interest of another employer. For initiating the secondment, it isn’t mandatory for the company to obtain the consent of the employee to be seconded. At the same time, the employee can refuse the secondment only on the basis of well-founded objective reasons.
The nature of the employee’s job can also be changed, but only if it is an exceptional situation, and always after obtaining the written consent of the employee.
Temporary cease of the employment contract during the secondment
During the secondment the employee will follow the directives of the hosting employer – i.e., to whom he is seconded. This means that during the secondment period the individual employment contract concluded with the seconding employer can be suspended (temporarily ceased), although it is not mandatory. Thus, the secondment will be a fixed-term deployment of the employee by his legal employer.
ATTENTION: In case of secondment of an employee to another EU member state, the employee’s employment contract should not be suspended, and must always remain active. Secondment/posting under the Romanian Labor Code should not be confused with transnational posting under the EU Directive (Directive 96/71/EC).
