The world of employment law: Zooming into the future – the employment law response to the huge shift in working patterns
17 February 2021
As widely discussed, the pandemic has caused, or perhaps merely accelerated, a mass shift towards homeworking amongst office-based employees. A survey by Eurofound found that over a third of employees across the EU member states were working exclusively at home during the pandemic.
Early on, some employees who found themselves stuck in another country and unable to return home started to trial remote working from abroad. As time went by, other employees became attracted by the idea of moving temporarily to an overseas location while continuing to work from home. The government of Barbados seized the opportunity to offer a 12-month “Welcome Stamp”, permitting overseas individuals with an annual income of at least US $50,000 to work remotely from the island without the need for any visas or immigration permissions. Costa Rica also introduced a draft bill to attract remote workers from overseas by allowing them to benefit from a new migration status for one year, with the possibility of a six-month extension. Similarly, in the United Arab Emirates, Dubai introduced the Virtual Remote Working Programme, which allows employees of foreign employers to reside in the Emirate for a year, subject to them meeting certain criteria such as providing a valid employment contract and earning a minimum monthly wage.
Beyond these ground-breakers, however, requests by employees to work from home overseas became a source of considerable headaches for employers in 2020. There have been a myriad of income tax, corporation tax (permanent establishment), social security, immigration, employment law, benefits, health & safety and data privacy issues to work through before deciding whether such requests could be permitted for the short, medium or long term. Yet with the shift to remote working likely to be permanent, solutions will go on needing to be found – whether by way of a new international agreement, use of “Professional Employer Organisations” and similar vehicles, the establishment of new legal structures, or simply “taking a view”.
Meanwhile, some countries have been working on permanent changes to their rules on domestic remote working, especially in Europe.
Spain passed a new law on remote working, defined as working from home or remotely for at least 30% of the time within a three-month reference period (or whatever other percentage is specified in the applicable collective bargaining agreement). The new law came into force on 13 October 2020 but will not apply if remote working schemes are brought in purely as a health measure to reduce cases of Covid-19. The law imposes several new obligations on employers, including to sign a remote working agreement, pay all expenses related to remote working, provide all tools/equipment needed, and comply with health & safety regulations (including carrying out specific risk assessments related to remote working and occupational hazards in employees’ homes). It also empowers employers to adopt appropriate measures for surveillance and monitoring of remote workers.
Poland is proposing to replace its existing remote working laws. While its approach is likely to remain relatively rigid, more flexible arrangements can currently be enjoyed under Poland’s emergency Covid regulations. Slovakia also proposes to amend its Labour Code to clarify rights and obligations for remote working. The change would tighten the existing legal regime, for example in relation to work scheduling, provision of equipment, meal vouchers and reimbursement of costs. It would also provide a right to disconnect.
In Germany, a first proposal for a new Mobile Working Act has failed to win the government’s support. This would have provided employees with a legal entitlement to work remotely for at least 24 days each year unless the employer put forward compelling operational reasons why this was not possible. The Federal Labour Ministry is now, as part of a new draft Act on strengthening Works Council rights, planning to introduce a new co-determination right on mobile working into law. This would mean that an employer could not unilaterally implement decisions about remote working without seeking agreement with the Works Council.
The new coalition government in Belgium has indicated that it will develop a new framework around remote working with the social partners, in response to a strong demand from employers and employees to continue such arrangements.
Employees in the Netherlands already have the right to ask to work from another location, but the employer is only required to consider the request and can easily refuse it. A legislative proposal has been made to extend the law so that any refusal of remote working must be based on compelling business reasons. The UK is also proposing to make flexible working the default option, unless the employer has a good reason otherwise (although there is currently no timescale for this).
In France, an agreement about remote working was signed in November 2020 between employers’ associations and labour unions at national level. This agreement mostly formalises existing general principles and best practices on remote working and so has not brought about any significant changes to the existing legal framework. Employers are encouraged to negotiate or consult on remote work with a view to signing a company agreement or establishing a company policy that sets clear and objective rules regarding employees’ eligibility to work remotely, working time monitoring, provision of equipment to remote workers, payment of expenses, training, health & safety rules and other matters.
More radically, the Irish government recently announced plans to legislate to give employees the right to request remote working as part of its new National Remote Working Strategy. Employers will be required to justify refusing any request, with the employee being able to take their case to the Workplace Relations Commission if they do not accept the employer’s justification. The government has set a target of 20% of public-sector employees to work remotely under the plan, which includes commitments to provide the necessary infrastructure and a review of tax treatment. A new code of practice will address the right to disconnect.
Argentina also adopted new laws regulating all aspects of remote working, including working hours, the employer’s responsibility to provide equipment, the employee’s right to be reimbursed for expenses, and the right to disconnect.