In the context of the Covid campaign, the state of emergency was lifted as of 1 June 2022, as a result of which the provisions in the government regulations were also abolished or restructured and have now become part of the legal system. During the pandemic, teleworking – or, more commonly known as home office – was not just an option, but became a common practice, which the evolution of the pandemic situation forced it into. However, the negative aspects of the pandemic have also brought with them a number of positive developments and opportunities for innovation, which have led employers and managers to reflect on the restructuring of work in the workplace.
In the recent past, many of our clients have decided to make the home office a mainstream option, and employees have been open to it, especially for jobs that are not made more burdensome by working from home. Of course, home working is not limited to specific jobs, but can also be used in a variety of jobs if agreed between the employee and the employer. It is important to note, however, that following the end of the emergency situation on 1 June 2022, the rules on teleworking will have changed, making it necessary to reconsider the employment contracts and regulations currently in force at each employer.
In providing this type of advice to our clients, we provide a complex service that includes a review of the employment contracts currently in force with the employer, as well as the drafting of employment contracts for new employees that incorporate the legal provisions already in force. In addition, it is recommended that other frameworks for teleworking are set out in a single set of employer internal rules, details of which will be covered in our next article on this subject.
What are the options for concluding a telework contract?
According to the rules of the Labour Code, the home office, as a so-called hybrid form of work, allows employees to work partly at the employer’s headquarters and partly at a place away from the employer, even at home. However, it is important to underline that this requires the employer and the employee to conclude an explicit telework contract, which implies that the employment contracts of employees currently in force but who continue to work from home must be amended individually and that an explicit telework contract must be drawn up for new employees who join and plan to telework. A similar assignment was recently carried out by our office for a client, whereby the employer’s employment contract and its terms and conditions were revised and the current employer and employee requirements were updated.
In principle, the Labour Code contains rules that allow for derogation, so if the parties wish to deviate from its provisions, they are free to do so, but careful consideration is needed in drafting. A similar situation exists in relation to teleworking, where the provisions of the former government decrees under the emergency situation have been added to the Labour Code. Thus, if the parties agree that the employer’s right to give instructions is limited to the scope of the tasks to be performed, that the employer exercises his right of control by means of a computer device, and that he is present at the employer’s premises for one third of the working days, it is sufficient to stipulate in the employment contract that the provisions of the Labour Code on teleworking apply. However, in the majority of cases the situation is not so simple, as the employer wants to impose higher requirements than those provided for in the collective agreement in the context of its right to control and instruct.
Home office = holiday, or what are the limits of teleworking in terms of working hours?
Another important rule is that, under the current rules, the fact that a worker works remotely does not make his or her working hours any less flexible. The difference between a fixed and an informal working time was a central issue in the context of our employment contract screening exercise mentioned above. In our client’s company, employees are employed in a variety of jobs in different work groups, which means that a customer-oriented job requires availability from 9:00 a.m. to 5:00 p.m., while other jobs allow for more flexible working hours. In jobs where availability for clients is not required, an informal working schedule may be an option, while in client-facing groups, working hours are more fixed and a fixed schedule is recommended. It is therefore advised that this issue should be considered in the context of job functions or work groups, as it may not be the case that a fixed working schedule is the solution if the employer wishes to give employees more time off. It may also be necessary to work out which working arrangements are preferable in which working groups, for reasons of some kind of uniform record-keeping and right of control.
In principle, in an informal work schedule, the employee can organise his or her work autonomously, and is entitled to decide when to work and when not to work. However, the informal nature of the work schedule is not affected if the employee can only carry out certain tasks at predetermined times: for example, he or she must attend client meetings organised by the employer at a specific time or must complete specific tasks by a deadline. It is important to underline that, according to the Labour Code, only informal working hours may be stipulated in the employment contract of managerial staff.
Generally speaking, an informal work schedule can only be imposed if it is genuinely possible in view of the specific nature of the job and the independent organisation of work. If, for example, working hours have to be adapted to the employer’s opening hours or if the technology used requires constraints, as in client-based teams, there is no question of an informal working pattern. A further condition is that the work must be able to be carried out with a high degree of autonomy, that performance requirements must be personalised and that the result must be accountable. It is not a breach of an informal working pattern if the worker can only perform certain tasks at times determined by the nature of the work or by the employer, or if he has to perform his work essentially at his place of work. The use of an informal working pattern cannot be a way of avoiding compliance with the working time rules by allowing the employer to delegate the right to allocate working time in jobs where the employee does not actually allocate his or her own working time. In the case of an informal working time system, no records of normal and abnormal working time need to be kept, but the employer may do so in the absence of such an obligation.
Casual working hours usually exclude extraordinary working. However, the imposition of such an arrangement should not be a circumvention of the rules on working time, and the imposition of disproportionate working tasks compared to the general full working time may also give rise to the possibility of working exceptionally when an informal working time arrangement is imposed. The employer may determine the conditions and limits for the provision of an informal working time, but this does not in itself affect the informal nature of the working time. In doing so, it may determine the working days and rest days, or the time frames between which the employee may divide his daily working time on each working day, and at the same time the starting and ending times of the daily rest period. Care must be taken, however, to ensure that this framework is still such as to give the worker genuine freedom of control over his working time.
So, as stated above, what our client wanted to put in the contract was to keep the employer’s right of control and direction so that he could set the working hours with some flexibility. In the event that we want to have a degree of recordability in the employment relationship in addition to informality, it is even possible to do so within the framework of informality, since it is acceptable for the employer to provide a framework and to define the conditions and limitations of informality, but these need to be regulated in the employment contract.
To sum up, the new home office legislation may offer a number of advantages in the current situation, but it is important for employers to bear in mind that in principle, in the case of hybrid, i.e. mixed work, where the work is carried out partly on the employer’s premises and partly from home, it is mandatory to conclude an explicit employment contract with the employee, in the absence of such a contract, the maximum number of working days per year for work from home office should be forty-four, unless expressly ordered, and the telework contract should also take care to specify the framework of the contract, in particular the fixed and flexible working hours. First and foremost, of course, is the employer’s intention to establish a uniform regime in this area, which can be helped by the development of internal employer rules, as detailed in our next article.
If you are an employer considering hybrid working and need advice on employment law, please contact our office.
Authors:
dr. Szoboszlai Márta
dr. Bajcsay Gergely
Please note that the general information provided in this article is for informational purposes only and does not constitute legal advice. We cannot be held liable for any misinterpretation of the above information or for any changes in the law that may have occurred in the meantime. If you have a specific question or legal problem, we are able to provide individual advice after consultation with our office and after a full investigation of the case.
