COVID 19 and the resulting measures implemented across Europe to limit the spread of the virus resulted in a mass movement towards working from home.
As the number of cases start to fall and countries seemingly bring the virus under control, restrictions put in place on the opening of offices are now largely being eased, precipitating a partial and gradual return of workers to their places of work.
However, a combination of remote and office working is likely to be the norm in many European businesses for the foreseeable future – either out of choice or necessity. This will create a series of challenges for companies especially with respect to ensuring the health & safety of employees, enabling a suitable home work environment and protecting personal and corporate data.
In this article, members of the Meritas’ European Employment Law Group discuss these issues as they relate to different markets across Europe.
In Belgium, to limit the spread of the COVID-19 virus, home working is still the norm for all employees whose job function allows this. The Government has even introduced a new term “telehomework” in the context of the COVID-19 virus, which is a new form of home working.
- This new form does not fall under the ‘normal’ rules that apply to occasional or structural teleworking, which are laid down in respectively the Agile and Flexible Work Act of 5 March 2017 and Collective Labour Agreement no. 85.
- This COVID-19 measure is part of the employer's general obligation to ensure that employees can work in decent conditions with regard to their health and safety.
In addition to health & safety obligations, the employer is responsible for providing the necessary work equipment, such as a computer, mobile phone, etc.
- If the employee uses his private equipment for professional purposes, the costs relating to the use and maintenance of this equipment, should in principle be borne by the employer. The Belgian authorities have accepted that an employer may grant a lump sum monthly expense allowances to its employees (cfr. structural telework):
- 129,48 EUR net (up to 31 March this was 126,94 EUR) for the installation and use of a home office (i.e. heating, electricity (including lighting), small office supplies, …); and/or
- 20 EUR net for the professional use of a private computer; and/or
- 20 EUR net for the professional use of a private internet connection.
In Bulgaria, when it comes to health and safety of home workers, one of the issues being debated is what happens in cases of work-related accidents.
- Under Bulgarian law, the liability of the employer in such cases is quite extensive. However, were an accident to occur at the employee’s home there are uncertainties as to how will it be investigated by the employer and the authorities. Would the same criteria apply in order to classify it as work-related accident and how could the employer secure proof of what actually happened in case of disputes? These are issues that an employer should consider when introducing home working.
In Croatia - the rules around health and safety of employees in general are typically strict and impose numerous obligations on employers.
- With regards home working, the Croatian Ministry of Labour is trying to take a more practical approach and has issued a series of opinions supporting more reasonable solutions. It is hopeful this situation will have a positive impact on further legislation changes with respect to health and safety.
In England and Wales, the employer is obliged to ensure the health and safety of homeworkers, as far as is reasonably practicable.
- As a minimum, this will include checking that they have adequate and safe equipment (and supplying additional equipment if needed) and taking reasonable steps to protect homeworkers' mental health.
- The mental health risks of prolonged, isolated homeworking are significant and employers should take steps to mitigate these by ensuring that homeworkers receive appropriate supervision and feedback, have regular contact with colleagues and are able to access mental health support if needed (many UK employers operate an Employee Assistance Programme enabling staff to access counselling via self-referral).
In France, working from home requires in principle an agreement between employer and employee.
- While it is expected that at the beginning of July 2020, employees in France will go back to the office in person, working from home will be used either for people who are medically vulnerable, or by companies which agreed with their staff to continue using the work from home option.
- Health & safety and working conditions will need to be considered for employees returning to the office and be protected against the risks linked to COVID 19 and for the employees staying in home offices, whose health & safety and other risks linked to work at distance should also be carefully considered.
In Germany, remote working, especially in a home office, is subject to rigid statutory regulations regarding employee protection and work safety measures. For example,
- German employers who would like to build a home-office for their employees, are responsible for providing all equipment needed by the employees to perform work from home. This includes not only a laptop or notebook, it includes a desk, a chair, a screen, a modem and to cover additional costs.
- Employees cannot be forced to work at the kitchen table sitting on a simple stool.
- The volume of equipment provided has to be assessed by the employer making a visit to the employee’s home.
- Furthermore, the employer has to run a risk assessment based upon its findings and has to comprehensively instruct the employee on the potential dangers that may be derived from working at home.
In German law there is, however, a distinction between ‘home office’ and ‘mobile working’, with the latter allowing more flexibility.
- In a ‘mobile working’ environment, employees are able to decide where they perform their work, which may not be at home, in a Café or elsewhere.
- In this environment, no risk assessment has to be made and no equipment for work from home has to be provided. The employer only has to give a theoretical instruction to the employees, indicating the general dangers to health and safety, while not working from a proper desk and away from office.
As a result of this difference, some companies are looking to get around the strict ‘home office’ obligations by arguing their employees are ‘mobile working’.
In Greece, it is the employers responsibility to facilitate the creation of a suitable work environment,
- By law, employers must bear all costs related to telecommunication, devices and equipment that the employees use for remote-working. Employers are also responsible for providing technical support to the employees when they work from home.
- The Greek Labour Inspection Authority has currently started inspections regarding employment conditions during home-working, following the complaints filed by some employees for home-working conditions that were in breach of employment law (i.e. amendments to employment contracts with detrimental effect for the employees, monitoring during home- working and other significant intrusions into employees’ private life).
In Ireland, an employers’ duty towards their employees continue as normal and under health and safety legislation employers continue to have a duty to ensure a safe workplace for all employees.
- Employers ought to carry out safety risk assessments ensuring both safe work practices and safe office equipment are in place for those working from home. This may be a costly exercise for those businesses hit hardest by the pandemic and those with large workforces.
- Under the Organisation of Working Time Act employers in Ireland are required to maintain a record of employees working hours and details of breaks and annual leave taken. These records must be retained by the organisation for up to 3 years. This legal obligation on employers has not been affected by the COVID-19 pandemic and continue to apply to employees working from home.
- This poses huge challenges for employers and will require clear policies and procedures to ensure that these records are maintained and employees are availing of adequate rest periods. Failure to provide breaks and maintain records can result in a complaint to the Workplace Relations Commission by an employee or prosecution.
In the Netherlands, the Dutch government still advises employers and employees to work from home as much as possible.
- Pursuant to the Working Conditions Act the employer is obligated to provide a safe and healthy working environment to its employees. This also applies if the employees are not working in the office but working remotely. The employer is responsible for providing all equipment needed by the employees to perform work from home and is obligated to assess whether the home office is ergonomically safe and sufficient. The employer should bear the costs of all such measures.
- Also in view of the prevention of (psychosocial) work stress, it might be advisable to establish a working-from-home policy. If the employer does not comply with the Working Conditions Act, the Dutch Inspectorate SZW may enforce it and may levy a penalty.
In Norway, the health authorities have given guidelines concerning home offices, enabling each company to decide whether to continue to use home offices or to reopen fully or partly. Many offices have now fully reopened, but some especially larger employers still recommend their employees to work from home indefinitely.
- Employers are (regardless of the workplace) obliged to ensure that the working environment is fully satisfactory to ensure the employee’s physical and mental health and welfare.
- With regard to employees working from home, the employer shall ensure that the workplace is ergonomically adjusted, e.g. with an adjustable chair, good lighting and ventilation and an adjustable display.
- Further, the employer shall ask the employees to take breaks from work and vary their working position, arrange digital meetings and informal talks in order to ensure that the employees have regular contact with colleagues, ensure appropriate and continuously supervision and feedback, and allow for flexible working hours if necessary. All Health, Safety and Environmental work shall be carried out with the employees’ cooperation.
- Given the extent of homeworking in Norway, particular attention is made of the mental health risks of prolonged homeworking, and further, to the risks of data attacks and breaches of data protection and confidentiality. As regards to the latter, employers have been asked to ensure that their IT systems are secure and that their employees fully understand their responsibilities when dealing with confidential information from home.
In Spain, the government is announcing specific regulations on home working that shall regulate the company's obligations in terms of risk prevention for home workers, the right to digital switch-off in home working as well as the possible compensation that home workers must receive for the additional expense of fitting out the workplace in their homes.
Ensuring the protection of data when home working
The rise in home working has led to an increase in cyber security attacks on businesses as cyber criminals seeks to exploit weaknesses in people’s home IT systems. Employers need to ensure, therefore, that extensive home-working does not lead to breaches of data protection and confidentiality.
Although deliberate data leaks may be deemed to be outside the scope of an employee's employment (as in a recent Supreme Court case in England involving the supermarket Morrisons), inadvertent breaches may still result in the employer being liable for the breach – and the damage to customer relations can be extensive even where the business isn't liable for compensation. Likewise, in an increasingly difficult business environment, the last thing businesses need is confidential client information going astray.
Companies, therefore need to have robust policies, systems and procedures in place to ensure personal and company data is protected by people working from home and to deal effectively with any breaches that may occur. This must be balanced with ensuring that employees’ privacy is not undermined during home-working, taking into account that employees have a higher expectation for the protection of their private life at home.
- Employers need to ensure that IT systems are robust and secure and that staff clearly understand their responsibilities when dealing with personal data or confidential information at home – for example discouraging them from having sensitive discussions in the garden where neighbours might overhear.
- Likewise, they should be given guidance on handling and storing confidential documents at home. This should be backed up by disciplinary sanctions for breaches.
- Data Protection authorities in Europe have issued opinions on the extent to which employers are allowed to collect personal health data in the wake of COVID-19 including the use of temperature checks and thermal cameras.
- They have also issued guidelines with some optional security measures for homeworking, such as: secure remote access to IT systems (i.e. IPSec VPN); using encryption tools for online storage of personal data; using encryption tools for electronic files that contain confidential information; using professional email addresses when sending personal data and other confidential information; using firewalls & antivirus software; using end-to-end encryption methods for teleconferences, etc.
Other issues employers should consider when it comes to facilitating their employees in working from home.
Formal work from home agreements - even though formal agreements may not be legally required, it may be advisable to make agreements about the modalities of home working.
- This does not necessarily have to be done via an individual agreement, but can be easily done via e-mail with a number of pragmatic agreements on e.g. the temporary nature of the measure, the employee's availability period, the possibility of monitoring by the employer (therefore the employer needs to review your existing rules on e-monitoring and adapt them where necessary to teleworking), possible reimbursement of expenses or intervention in certain costs, etc.
Avoid risk of discrimination - in implementing home working strategies, employers need to ensure that they do not directly or indirectly effect one group of workers more than others in a discriminatory manner.
- Once employers identify potential grounds for discrimination e.g. age, family status etc., they must then consider whether there is a way to reasonably accommodate an employee in order to prevent this potential discrimination from occurring.
Employee discipline, productivity & motivation - Work from home generally makes supervision of the employee’s discipline harder for the employer.
- A company may need to adopt additional policies, measures and procedures which would allow the employer to better observe and monitor its employees without disproportionate intrusion into their personal space. However, even with such additional policies at place, home working makes the disciplinary process harder, especially when it comes to investigation of violations and collection of evidence.
- The sudden transition from office work to home working could result in a general reduction of the employee’s productivity and motivation. Home working is not suitable for everyone and many outside factors make it very hard for some employees to adjust. Therefore, effective home working strategies requires careful planning and in-depth understanding of the needs of individual employees prior to implementing a full home working regime.
Summary & Conclusion
Countries across Europe, to a greater or lesser extent, are easing the restrictions on the opening of offices caused by the COVID 19 crisis, enabling workers to partially and gradually return to work.
However, we have witnessed a mass new movement towards home working facilitated by technology and employees desire for choice in their working environment. Regardless of when or whether COVID-19 is finally defeated, it is likely companies will be encouraged to provide a combination of home and office working environment, especially for those employees who do not always need to be at a specific place of work.
This new reality though has significant implications for employers. They are obliged to ensure the health and safety of all their employees, whether they work at a place of work or at home. In many cases this means ensuring a suitable home work environment including the provision of suitable and safe equipment. In some countries, this means risks assessments need to be taken of the employee’s home and records kept of working hours, breaks and annual leave etc.
When you add into the mix an employer’s obligation to protect personal data and employee privacy whilst also ensuring employee morale, motivation and discipline are maintained, one can easily see this is not an easy or short-term fix.
Companies are therefore recommended to careful create, review or update their policies, systems and procedures for home working and seek legal advice if required. With luck we may be starting to see the end of this current crisis. In its wake, working from home has become the new norm, but the steps companies need to take to achieve this effectively have only just begun.