Legal Implications of Home Office: Opportunity or Threat?
What seemed hardly imaginable some months ago suddenly became reality due to the COVID-19 pandemic: Sizeable teams had to switch to remote working within a few days and have been working remotely for weeks now.
Dr. Dániel Gera, Counsel, Schoenherr Hetényi Attorneys at Law
This situation poses challenges to both employees and employers. Companies need to find new ways to establish efficient cooperation, foster information flow, and prevent team members from social isolation.
Although employing workers at least partially in home office has been a widespread practice for a long time, its legal basis and concept was not precisely regulated. Hopefully, the current experience will help to develop more accurate regulations.
Legal Concept: Place of Work
Though the current Labor Code does not require parties to agree on the place of work in employment contracts, it still often forms a part of that. Thus, it is still debated how to interpret the concept of home office. We see various approaches in European countries such as:
• an “allowance” for employees to freely choose their place of work;
• an order by the employer to assign the employee to temporarily work from another location;
• a specific form of teleworking which is already an existing form of employment.
Some countries’ legal systems require a mutual modification of the employment contract to (even occasionally) change the place of work. In some of them, employment contracts may provide a unilateral “relocation clause” in favor of the employer which may serve as a basis for ordering home office.
Due to the current state of emergency in Hungary, employers have the right to unilaterally order home office. Such an order is only effective until 30 days from the declared end of the state of emergency.
The employer needs to make sure that the home office is “fit for purpose” (i.e. it is compliant with health-and-safety law requirements), as it is the employer’s obligation to provide a safe workplace. Employers are required to check the workplace and authorize its use in advance. They also need to check the appropriateness of the equipment provided, prepare a risk assessment, and raise employees’ awareness of risks and on potential ways to avoid or mitigate them.
In the current situation, many employers were not in a position to fulfil these obligations and physically inspect employees’ home workplaces. Some employers asked employees to take photos of their workplaces and provide a description of the equipment used. While that is to be appreciated, it does not substitute for a proper inspection and risk assessment. That said, authorities are expected to be more forgiving with employers who were not in a position to completely fulfil their above duties.
Privacy and Control: Working Time
On the one hand, employers remain obliged to organize work, administer, record and monitor working times and rest periods. In the case of remote work, employees naturally have a higher flexibility with respect to working time. While it seems simple to set out a fixed working time, the administration of the actual working time, the breaks and potential overtime may be troublesome. Potential solutions include allowing a partial flexibility of the working time contractually (if possible), or the implementation of certain IT tools to measure working time.
On the other hand, such IT tools must be used carefully. According to the guidelines of the Hungarian Data Protection Authority (NAIH), constant monitoring or surveillance methods (e.g. webcams, live chats and the like) disproportionately restrict an employee’s right to privacy. Similarly, a constant collection of data from the IT tools used by the employees may be regarded as disproportionate. Employees must be informed in advance of all monitoring and surveillance methods and employers may need to prepare a data protection impact assessment before implementing them.
Working from home can also be a risk for employers, as they need to set up and operate systems which provide for increased IT security. Employees need to be trained on how to preserve the confidentiality of corporate information while working from home and informed on precautionary measures. In this regard, employers enjoy a great level of freedom and employees are obliged to cooperate.
The extended use of home office will certainly provide an opportunity to establish new, economically more sustainable and more “user-friendly” working methods for each involved and create new platforms for work in the 21st century.
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