Employment and Industrial Relations Law
The new norm of Telework – The Law and its Prospect of Reform
The new norm of Telework – The Law and its Prospect of Reform
8 min read
What is Telework?
In the context of employment, telework is a form of organising or performing work, using information technology, such as smartphones, tablets, laptops, and desktop computers, where the work, which could also be performed at the employer’s premises, is carried out away from those premises, on a regular basis. For the sake of clarity, telework is normally considered as a subcategory of the broader concept of remote work, as the latter does not necessarily include the use of information and communications technology or landline telephones to carry out the work remotely.
Legislation on Telework
Telework is usually inscribed as an employment condition in the teleworker’s contract, or else by a teleworking agreement created in the course of the employment relationship. Any employee conducting teleworking should have the required teleworking provisions in his/ her contract. Any teleworking condition stipulated in the contract of employment or other agreement cannot be less favourable than those stated in the Telework National Standard Order, S.L. 452.104, by Legal Notice 312 of 2008, which is based on the Framework Agreement on Telework, 2002. However, at EU Level, there is currently no legislation specifically regulating telework, and some issues on this fact may arise.
Essentially, it shall always be the duty of any employer to ensure the health and safety at all times, of all persons who may be affected by the work being carried out for such employer, even during telework. In fact, it has become extremely common to see employees regulating teleworking employee, especially following the COVID-19 pandemic. Employees have adapted to teleworking arrangements in terms of accessibility, flexible working times, continuous connectivity, social isolation and telework expenses, among others. However, due to the increase of employees working from home, more work-related incidents may occur during work hours. Such teleworking arrangements present specific challenges for the employer to ensure and fulfil several occupational safety and health obligations, and the lack of EU legislation on the matter is unhelpful.
Where can the line be drawn between the happening of accidents at home during the employee’s professional obligations, and incidents which happen at home during an employee’s personal life? And secondly, what measures must be taken by the employer to prevent the teleworker from suffering from any physical or mental incidents during telework at home?
The specificities of telework normally require additional written information in the contract of employment or an addendum thereto, on several matters such as:
- The specific hours of work intended for work and those hours intended for the use of a break;
- The department of the undertaking to which the teleworker is allocated;
- The employee’s immediate superior or other persons to whom she or he can address questions of professional or personal nature;
- Reporting and other communication arrangements.
These requirements however in no way affect the teleworker’s overall employment status.
The EU Framework Agreement on Telework
Overall, the voluntary EU Framework Agreement on Telework mainly includes general recommendations related to information provided to and consultation with teleworkers on Occupational health and safety (OHS) policies and about the prevention of some psychosocial risks (isolation). Although it provides general and brief advice on telework employment conditions, the organisation of work, data protection, privacy, work equipment usage and collective rights, the agreement is purely voluntary in nature and therefore every Member State may opt to implement it at their own discretion. Once again, the section relating to Health and Safety is lacking as it merely includes three points:
- That the employer has a duty to protect the occupational health and safety of the teleworker (without explaining the methods by which this may be done);
- That the employer must inform the teleworker of the Company’s policy on occupational health and safety (without providing what information should be included in such a Policy)
- That the employer, workers’ representatives or the relevant authorities have access to the telework place within limits, to ensure that the applicable health and safety provisions are being properly applied (without providing how this monitoring system should take place).
However, the mention of telework-related accidents is nowhere referred to, meaning that once the issue arises, it is completely up to the employer to decide on how to tackle the situation, unless a specific clause in the employment contract related to accidents, even during teleworking (and not at office), is included. This diminishes the safeguarding which the law should always afford to the employee as the weaker party to an employment contract.
Telework – An EU Comparative Analysis
With regard to telework accidents, it has become very common to find national legislation having explicit definitions of what telework is, with varying degrees of detail, but the main elements of the concept of telework remain consistent throughout.
In France and Spain, any accident occurring at the telework place and during working hours is presumed to be an accident at work. Therefore, it is essential that the location of telework, and the working hours of the employee are listed in the Telework agreement or employment contract. It is normal practice that in Malta, the parties to the agreement would agree on what ‘Office Hours’ entails and where the ‘Place of Telework’ is.
The presumption in France and Spain is in favour of the employee who would have suffered an injury during telework, and it is then exclusively up to the employer to prove the non-work origin of the accident. Otherwise, the employee may claim compensation for damage caused, depending on the nature and extent of the suffering and the consequences which arose, such as whether the employee can continue to work. On the other hand, this presumption of injury during telework does not exist in Italy, Finland or Sweden where, to benefit from compensation for damages, there must be a vivid causal link between the accident occurring at a distance and the professional activity carried out at the time of the accident.
There also exists some uncertainty when it comes to deciding on accidents which occur during telework journeys and commuting accidents– such as during lunch breaks or during possible detours for errands like taking one’s child to school during work hours. Employees in Germany for instance are offered such treatment. Some national laws, like in Austria, consider coverage for telework as almost equivalent to that for face-to-face work, but in other countries it only applies under certain conditions. Such employment arrangements are usually considering in SMART working, which stands for Specific, Measurable, Achievable, Relevant and Time working. This is characterised by an organisation of work by phases, cycles and objectives and can vary from one Company to the next.
The Way Forward
At present, it is crucial that EU countries begin to take legislative measures to improve telework conditions, especially, accident coverage, to better regulate the overall design of the telework environment.
There is the need for more equal standards in the EU to protect teleworkers since national-level regulations on telework differ among Member States, specifically in the case of health and safety when working from home. Unfortunately, Directive 89/654/EEC concerning the minimum safety and health requirements for the workplace does not address telework health and safety, and neither does Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. The same goes for Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, in that it does not include, in the essential aspects of the contract or employment relationship, the scope of telework.
Thankfully, local legislation covers the fact that any agreement of telework must be made in writing and contain information on the employee and the conditions particular to telework, such as where the employee will be working, the amount of time and approximate schedule by which the employee is performing his work duties. Further, there must be strict rules on how compensation is calculated for an accident arising at the workplace, and what factors are taken into account when calculating damages payable to the employee.
Modernising the organisation of work, by increasing flexible working arrangements whilst still maintaining a high level of privacy and security for the employee, will make companies much more productive and end up more competitive. employees should be in a position to find a balance to reconcile their working schedule with the personal life at home, giving them a greater autonomy in accomplishing tasks, with the aid of beneficial information technology. This further reduces any cases of discriminating among employees with different physical and/or mental limitations.
It would be interesting to see the possibility of having a New EU Directive on this subject in the near future.