Working from home has undergone a stress test in the past year and has become one of the important tools in the fight against the pandemic, although the legislator did not pay much attention to this matter when drafting Act No. 262/2006 Coll., the Labour Code, as amended (hereinafter the “Labour Code“).
A group of Members of the Parliament of the Czech Republic attempted to remedy the situation by submitting a bill (Parliamentary Document No. 1167), which was set to take effect on 1 July 2021, and which was supposed to introduce a new regulation and elaboration of the home working regime in the Labour Code (hereinafter the “Bill“). Consideration of the Bill is now on the agenda of the 111th session (since from 7 July 2021).
However, the Bill is being rejected by the expert public and is rather a subject to criticism. In this article, we would like to discuss the issue of working from home in the context of the Bill.
Working from home in the perspective of today’s regulation
The current concept of legal regulation of working from home is based on a single provision of Section 317 of the Labour Code, in which the legislator briefly defines that all provisions of the Labour Code apply to an employee who does not work at the employer’s workplace, except for three specific situations, which are defined in Section 317 in points a) to c).
First, such an employee shall not be covered by the provisions on the scheduling of working time, downtime and interruptions of work caused by adverse weather conditions. Secondly, in the event of other important personal obstacles to work, he shall not be entitled to compensation for wages or salary, unless otherwise provided for in the implementing legislation, and, thirdly, he shall not be entitled to wages or salary or to compensatory time off for overtime work or to compensatory time off or wage compensation or extra pay for working on public holidays. All the other provisions of the Labour Code may be applied to homeworking, given the circumstances, and often cause interpretative or practical complications.
According to the interpretation of the Labour Code, working from home must be agreed with the employee. In practice, a written agreement between the employer and the employee is most often concluded within the framework of the employment contract or separately from it, in combination with an existing internal regulation of the employer, which usually regulates the detailed conditions of working from home. However, it is possible to negotiate such an agreement with the employee without the existence of such an internal regulation, or to conclude the agreement in the form of an amendment to the employment contract.
Can work from home be ordered?
As a result, the brevity of the homeworking legislation leads to many problems of interpretation. One of them was the recently discussed issue in connection with the Government Resolution No. 1102 of 26 October 2020, on the adoption of a crisis measure, whether it is possible to order an employee to work from home and/or to impose an obligation on the employer to “use working from home where the nature of the work and the operating conditions make it possible for employees to carry it out at their place of residence”.
By looking at the general provisions of the Labour Code, it can be clearly concluded that the current concept of working from home does not allow to order work from home to the employee and any attempt to do so must be seen as contrary to Section 2 (2) of the Labour Code, since dependent work is “performed at the employer’s workplace or at another agreed location”.
Thus, it can be clearly concluded, that in this case it is not possible to unilaterally order an employee to work from home; it could only be arranged by agreement between the employee and the employer.
Problems of interpretation
The brief regulation of working from home is interspersed with several interpretative issues that have not yet been clarified, particularly in relation to the employee’s health and safety at work, the employer’s obligation to contribute to the costs incurred by the employee when working from home or the employer’s ability to control the performance of the employee’s work.
Employee’s obligation to indemnify
An illustrative interpretive problem is the employer’s obligation to prove the employee’s fault for general damages. While it is now necessary for the employer to prove that the employee breached his or her duty during or in direct connection with the performance of his or her work duties in order to incur the employee’s obligation to indemnify, it is difficult to imagine how the employer would prove such fault in the case of working from home.
Reimbursement of costs associated with working from home
Another practical problem is the issue of reimbursement of costs associated with working from home, regarding to Section 2 (2) of the Labour Code, which provides that dependent work must be performed at the employer’s expense. Section 151 of the Labour Code imposes a direct obligation on the employer to compensate the employee for expenses incurred in connection with the performance of work. Typically, this will include the cost of increased electricity consumption, internet connection fees, wear, and tear on the employee’s own work equipment (laptop), etc. Pursuant to Section 346c of the Labour Code, an employee (even if he or she wishes to do so) cannot exempt the employer from the obligation to reimburse the employee for expenses incurred in connection with the performance of his or her work.
However, the employee must provide evidence of such expenses. In practice, the topic of lump-sum reimbursement of expenses to an employee is therefore becoming more and more frequent in connection with Section 190 (1) of the Labour Code, according to which “If the employer agrees or, where applicable, establishes by internal regulation or individually determines in writing the conditions, amount and method of providing reimbursement for wear and tear of the employee’s own tools, equipment or other items necessary for the performance of the employee’s work, the employer shall provide such reimbursement to the employee under the agreed, established or determined conditions.”
In our opinion, our legislation allows for lump-sum reimbursement of expenses to the employee – yet opposing views can be found, for example, from the General Financial Directorate, according to which such lump-sum reimbursement is not possible due to tax considerations, with the employer being required to reimburse the employee only for those expenses that are demonstrably incurred in the performance of work.
Control of an employee when working from home
Finally, the last illustrative problem is the limited ability of the employer to control employees when working from home – the area of occupational health and safety becomes particularly problematic. It is in this area that the employer has many obligations, the fulfilment of which will be particularly challenging for the employer in the case of an employee working from home, as the employee performs his/her work at a location outside the employer’s disposal and reach.
In particular, the employer should assess the employee’s home workplace and propose measures to eliminate risks and contribute financially (or otherwise) to the implementation of such proposals. However, against these obligations of the employer stands the constitutionally guaranteed right of everyone to inviolability of the home under Article 12 of the Constitutional Act No. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms.
The employee may refuse such inspection of the home office without further delay and make the inspection impossible for his employer. This may result in a situation where the employer is unable to meet its obligations under the legislation.
The Bill and its assessment
In view of the long absence of more sophisticated legislation on homeworking, the efforts to further regulate the homeworking regime in the light of the past pandemic year are welcomed. However, the Bill has not lived up to the expectations of the expert public, perhaps also since it was submitted in February 2021, with the Bill coming into effect in July of that year.
The Bill was submitted to the Government of the Czech Republic for an opinion on 24 February 2021. However, the Government of the Czech Republic issued a disapproving opinion on the Bill (Parliamentary Document No 1167/1; hereinafter the “Disapproving Opinion“), pointing out that the Bill contains several key shortcomings.
In our view, it is also necessary to agree with the argument that such a significant amendment to the Labour Code should undergo a proper inter-ministerial comment procedure and should be agreed by the social partners, i.e. representatives of employers and employees.
Employer’s ability to order work from home
Probably the most controversial proposed change under the Bill is the ability, as opposed to the current legislation, to order an employee to work from home and the ability of an employee to enforce homeworking against an employer. Thus, in practice, the following scenarios could arise under the Bill:
- agreement – the employer enters into an agreement with the employee to perform work outside the workplace with 14 days’ notice (48 hours’ notice if the employee breaches his/her duties in a particularly gross manner or repeatedly);
- ordinance – the employer shall order an employee to work from home for a necessary period of time when, for serious operational reasons or as a result of adverse weather conditions or a natural event, or measures ordered by a public authority, the employee’s work cannot be performed at the workplace;
- request – an employee could also ask the employer to perform work outside the workplace. The employer is obliged to grant such a request at least to the extent of half of the weekly working time in the case of employees referred to in Sections 237 to 241 of the Labour Code; the employer has the right to refuse the employee’s request only for serious operational reasons or if the nature of the work performed implies that it cannot be performed outside the workplace.
Proposed amendment is problematic primarily because of its potential unreasonable interference with the contractual nature of employment relationships, particularly with respect to the employer’s ability to order an employee to perform work from a location other than the employer’s workplace. The place of work constitutes one of the three essential elements of the employment contract, which can only be changed by agreement between the employee and the employer. It is problematic that the employer can order the employee to work from home for a period of time, which is defined by the vague legal term “for a necessary period of time”, and the Bill does not consider the employee’s possible objective or even subjective inability to work from home.
Shifting the burden of proof to the employee in general liability for damages
Another proposed and questionable change is the modification of Section 250 (3) of the Labour Code, which states that “The employer is obliged to prove the employee’s fault, except in the cases referred to in Sections 252 and 255.” The Bill then amends this provision by adding after the end of this sentence “this shall not apply in the case of work performed outside the employer’s workplace under section 317.”
The Bill contemplates that if an employee works outside the employer’s workplace, whether by agreement or at the employer’s direction, the employee must prove, if the employer suffers damage, that he or she did not cause such damage.
The drafters of the Bill state in the explanatory memorandum to the Bill that the regulation imposing on the employer the obligation to prove the employee’s fault when working away from the workplace would place disproportionately higher demands on the employer to bear the burden of proof, which in practice the employer would hardly be able to meet, and therefore they propose to relieve the employer of the obligation to prove the employee’s fault when working from home.
However, such an arrangement would lead to many other unclear situations, for example, where the reverse burden of proof would apply to work from home but would not apply to employees performing work in the client’s home (flooring, plumbing, painting) or employees on a business trip. It is clear that employees working from home would thus be in an unjustifiably worse position than, for example, employees posted outside the municipality of their regular place of work.
Right to disconnect
The Bill also responds to the increased need for employee mental health care in an age of technology overload and blurring of work and personal time.
Following the French model, the Bill introduces a so-called right to be offline. According to the Bill, then, unless the employee and the employer agree that the employee will schedule his/her own working hours, the employee will perform work for the employer during the working hours set by the employer; however, the employer cannot require the employee to perform work between 8 p.m. – 6 a.m., on Saturdays, Sundays and on public holidays, unless the nature of the work makes it necessary to mandate these hours.
Conclusion and summary
The Bill is a response to the past pandemic year, which has shown that the existing legislation on working from home is not sufficient, as we explained above. The Bill has not lived up to expectations and, given the Disapproving Opinion, it is clear that regulating homeworking will be a task for the next Government. However, it cannot be overlooked that more detailed regulation of working from home would certainly benefit employment law practice.
However, the reasons for today’s need for legal regulation of working from home lie in its massive use, where a proportionally higher incidence of labour disputes could be expected – it is, therefore, necessary to set rules at least for basic (so far unsolved) issues such as health and safety at work, (lump sum) compensation for expenses incurred by employees in connection with the performance of work from home or the problematic burden of proof of the employer to prove the fault of the employee in the general obligation to compensate for damages. The sophisticated regulation of homeworking is ultimately to the benefit not only of the employee enjoying special protection, but also of the employer.
In the absence of legal regulation, it can only be recommended that the rules of working from home be clearly and elaborately regulated both in the agreement on working from home between the employee and the employer and, if necessary, in the employer’s internal regulations within the limits allowed by the Labour Code.
If you have any questions about this topic, we are at your disposal. Please do not hesitate to contact us.
Mgr. Tomáš Maux, junior lawyer – email@example.com
Mgr. Jakub Málek, partner– firstname.lastname@example.org
23. 07. 2021