The Home office policy and what’s behind it
By considering and taking into account the following five points, HR or the company manager can be more transparent in developing the necessary employer policies for general employment and the home office. 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 become part of the legal system. During the pandemic, teleworking or, more colloquially, home office, became not just an option but a common practice in many places, which the evolution of the epidemic situation has forced it into this situation. 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 our previous article, we discussed the relationship and regulation of the home office and the telework contract, and this article deals with the related home working and other internal policies of the employer. Some general points to think about when considering home office regulations The range of internal rules can be wide, as the more general an employment contract is, the more emphasis is placed on the employer’s rules, which may include the values and rules that the employer has agreed upon. In the first place, it is important to emphasise that the employer’s internal rules should be mentioned among the other provisions of the employment contract, at least to the extent that they have been communicated to the employee by the employer at the time of the conclusion of the employment contract and that they should be provided to the employee. In the opinion of the Curia, such notification is sufficient if it is published in a manner customary and generally known at the employer’s place of business. In the context of the home office, the employer’s home office arrangements are fully appropriate and, because of the possibility of different agreements under the Labour Code, can be properly designed by internal rules and regulations, which can be flexible to the needs of the employer and the employee. The design of the internal rules is entirely open to the areas that the employer wishes to regulate, so it is worth considering in this context the issues of working hours, data protection, confidentiality, accident prevention, the possibility of teleworking from abroad, the provision of work equipment and the costs of working from home. What should be the starting point then? to what extent can the Employer be controlled? Our firm has previously been commissioned to develop internal policies for companies in various fields around a home office culture and a code of ethics that conveys the values the company stands for. Following our methodology, after an audit of existing materials, we asked our client what were the key cornerstones that he, as an employer, would like to see consistently laid down in an internal code of conduct, which led him to the conclusion that he wanted to develop a set of codes of conduct, or codes of ethics, if you like, for employees. In the home-working policy, it is important to take into account what kind of working groups have been formed at the employer and what kind of work is carried out by the employers, as teleworking is possible not only for computer-based work, but it is recommended that the details of this, the rules on health and safety and the cost of the work are set out in the policy. The issue of employer inspections has changed compared to the emergency legislation, as the employer had to inform the employee of the rules of employer inspections before the emergency, and in the absence of any agreement to the contrary, the employer determined the method of inspection and, in the case of inspections on the premises where the work is carried out, the shortest period between the notification and the start of the inspection. As of 1 June 2022, the Labour Code will finalise the transitional provision governing the right of the employer to exercise the right of inspection at a distance by means of a computerised device during an emergency, unless otherwise agreed. Simplified occupational safety and health requirements have entered into force compared to the transitional rules applicable during the emergency, according to which the employer is responsible for implementing the requirements of safe and healthy working conditions. In the case of the home office, the more practical side is that if the employee works from home using only a computer device, the only obligation on the employer is to inform the employee in writing of the requirements for safe and healthy working conditions, so that the employee can choose where to work, which the employer can check by computer. In view of the above, it is therefore also worthwhile to address and detail the general health and safety rules in the home-working regulations, which is what we did for our client, by preparing a general information leaflet for employees on the rules of the home-working regulations. Of course, it should also be remembered that teleworking can also include work that is not carried out using a computer, but this is subject to stricter health and safety rules. Written information on health and safety can therefore be provided in the internal regulations, but it is important to note that the seemingly lenient health and safety requirements do not exclude the possibility of an accident at work during home office work, which does not, therefore, have a direct proportional effect on the employer’s exemption from liability in the event of an accident at work. So, from an occupational safety and health perspective, the framework within which the employer determines the inspection of the place of work chosen by the worker may raise very interesting questions, because if the employer does not organise the inspection properly or fails to do so,
The telework contract or the home office option in employment contracts
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