Legal nature of the home office and interesting facts from practice
26/11/2020
The situation caused by the coronavirus also posed new challenges to organized work, as there is an unprecedented demand for work in the home office, ie in the employee's home.
Working from home is considered by many to be teleworking, although this temporary transition to the home office does not correspond to the concept of teleworking as defined in the Labor Code. According to Section 196 of the Labor Code, ‘Teleworking’ shall mean activities performed on a regular basis at a place other than the employer’s facilities, using computers and other means of information technology (hereinafter referred to collectively as “computing equipment”), where the end product is delivered by way of electronic means. In the employment contract the parties shall agree on the worker’s employment by means of teleworking. In line with the above, the conceptual element of teleworking is, on the one hand, that the employment relationship is basically established specifically for the purpose of teleworking, and, on the other hand, that it is regularly performed in this way.
Conceptually, working in a home office can correspond to a statutory definition of employment in a workplace other than an employment contract; Pursuant to Section 53 of the Labor Code, Employers shall be entitled to temporarily reassign their employees to jobs and workplaces other than what is contained in the employment contracts, or to another employer. Accordingly, if the employee's employment contract indicated the employer's registered office or place of business as the place of work and the employee carries out from home on the employer's instructions, then in this case the employment takes place at a different place from the employment contract. The duration of employment may not exceed a total of forty-four working days or three hundred and fifty-two scheduled hours during a calendar year.
In connection with employment in the home environment, in a workplace other than an employment contract, we would like to highlight the following points of interest;
As far as the schedule is concerned, as a general rule, in the case of home office work, the employee's work schedule is non-compulsory, the employee works part-time, and assigns his / her own working hours. However, casual working hours do not mean that the employee does not need to be available at specific times, such as a meetings or conference calls.
With regard to the control of work, it can be established that basically the employer determines the method of control. It must be stated in advance, what period of time may have elapsed between the notification and the commencement of the on-the-spot inspection, that is to say, at the worker's home. Obviously, the employer or the nominee cannot show up in the colleague’s home unexpectedly. Control should not be a disproportionate burden on the employee, but it is also true for the employee’s family members if the work takes place in their own home.
Working remotely can also incur more serious work-related costs, such as telephone or Internet costs, or even special equipment or printing costs for the job, if the nature of the work requires so. Under the general obligations relating to the employment relationship, the employer is obliged to reimburse the employee for the costs reasonably incurred in performing the employment relationship.
With regard to the rules described above, it is important to emphasize that working in a home environment should not in any way lead to a violation of the employee's rights, so as a typical example an employee should not be required to take paied holiday leave during home office, shall not be required to take three shifts instead of the previous one, or work on weekends if he or she has not previously worked in this way. The 44-day time limit for employment at a place other than the employment contract applies only to the unilateral order from the leadership, ie if the employer offers the home office but does not make it compulsory and the employee accepts the possibility, in principle by mutual agreement of the parties. This way does not reduce the 44 working day annual limit. Flexible application of working from home can be a temporary solution until the end of the epidemic situation or until the physical location of the workplaces shall be provided.