Recently, there has been much media coverage of the spread of the coronavirus and the methods to minimise the chances of infection. Some employers have decided to introduce certain preventive measures, such as e.g. restricting business trips and delegations to at-risk countries, providing their employees with personal protective equipment (hygienic masks, disinfecting gels, etc.)or just temporarily reducing the number of people present in the office in favour of “remote work”.
Actually, many employers indicate in their job offers that they allow for remote work. The idea behind such a solution is the ability to perform one’s duties flexibly, and to reduce the waste of time connected with commuting to the office and back. Employees commonly refer to remote work as the so-called “home office”.
When looking into the provisions of the Labour Code, we will fail to find a relevant legal regulation, i.e. the one which would set out the manner in which such work is performed. The only related legal institution is the possibility to perform work in the form of telework, which in its nature does not correspond to the common understanding of remote work.
As a rule, it is only when one performs work away from the premises of an employer, on a regular basis, by means of information and communications technologies (ICTs), that we can talk about performing work in the form of telework. It is the criterion of regularity and repeatability that is decisive in determining whether we are dealing with telework or remote work.
As a side note, it should be pointed out that each time remote work is introduced (e.g. preventively due to an infection in the office), employees cannot be forcibly isolated, as this may bear the hallmarks of mobbing or discrimination, depending on which specific statutory conditions are fulfilled. In the case of remote work, the employee and the employer shall each time agree on the days on which the employee will perform remote work.
Depending on the technical solutions, when agreeing the timeframe of remote work, it is also worth to determine how the employee is to report to the employer, and when the work begins and ends (e.g.: by logging into the internal system, by email, etc.), in order to avoid any doubts as to whether the employee actually performed their duties or was at the disposal of the employer.
Both remote work and telework do not exempt the employer from the obligation to record the working hours of employees and teleworkers. Therefore, it is essential to determine how to confirm the start and the end of work. The exceptions are cases where an employee performs work under a task-based working time system—then keeping the records of working time is pointless (the only elements of work control are to check whether the designated tasks have been carried out within the specified time limit, to record absences caused by illness, compassionate leave, holidays, trainings, business trips, etc.).
The introduction of telework, as a form of performing work duties, is a more complicated and formal process. Telework can be introduced by concluding an appropriate contract between the employer and the trade unions, by introducing appropriate provisions into the work regulations, or at the request of an employee—both when concluding the contract of employment and during the employment.
In the case of telework, the legislator imposes on the employer, inter alia, the obligation to provide equipment necessary for performing work in the form of telework, to cover the costs related to the installation, servicing, exploitation and maintenance of the equipment, and to provide the teleworker with appropriate technical support and necessary training in the operation thereof, etc.
It is also a good practice to conclude a separate agreement between the teleworker and the employer regulating, inter alia, the scope of insurance for the use of the equipment necessary to perform work in the form of telework, the manner and form of control over the performance of the teleworker’s work, the rules for the protection of data provided to the employee, etc.
Another difference between telework and remote work is the right of the employer to inspect the teleworker at the place of work (unless the teleworking takes place at the teleworker’s apartment, in which case the teleworker must grant their prior consent to the inspection). In the case of remote work, the employer has no legal basis for carrying out inspections at the employee’s place of work.
As there are no code regulations concerning remote work, the parties each time set the terms and conditions under which they will work remotely on their own, which gives them greater freedom in creating this relationship, depending on the current needs of the employer or employee.
Before deciding on the method and form of introducing remote work or telework, one should assess the assumptions and fit them into the framework of an appropriate legal institution corresponding to the client’s business model.
Our law firm will be happy to provide you with, inter alia, labour law solutions tailored to your specific needs, or provide consulting before you make a business decision.
Should you have any doubts or further questions, we are at your disposal.