Remote work: Embracing efficiency amidst evolving regulatory landscape (part 4)
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Remote work has now evolved into the standard operating procedure for organisations worldwide. Initially adopted as a temporary measure during the pandemic, the ongoing prevalence of remote work setups poses challenges for organisations striving to comply with emerging regulatory changes.
In a series of four articles, Baker Tilly legal experts across the world explore their local regulatory frameworks that govern remote work. These articles aim to offer a concise overview of key issues, aiding organisations in navigating the complexities associated with remote work efficiently.
In the fourth and last article of our series, Jakob Widner , at Graf Isola in Austria, Amanda Trewhella at Freeths in Britain and Gianpiero Sperduti , at Baker Tilly in Italy, provide an overview of the framework for the ongoing remote work arrangements in these jurisdictions.
Did you miss the previous article in this series? Click here to read it.
The legal framework for home office in Austria
In the wake of the coronavirus pandemic, the Austrian government commissioned the so-called social partners (Chamber of Commerce representing the employer side, akin to a labour union acting on behalf of employees) to negotiate and present a bill on home-office work that the parliament could then pass into law as the new standard on remote work.
The final bill offered no surprises (but some tax advantages) and aimed to retain the legal flexibility for both sides of an agreement on remote work, essentially only consolidating a set of statutory default rules already governing the issue.
Therefore, the novel framework, set out in several statutes, will cover various issues, from contractual provisions to co-determination by the works council, tax relief and recommendations on occupational safety, and can be summarised as follows:
Work from home requires a (written) agreement between employer and employee, which can only be introduced upon mutual consent. Neither can an employee unilaterally invoke a right to remote work, nor can an employer direct an employee to work from home. Only in rare circumstances can the employees fiduciary duties and duties of care of the employer justify a unilateral decision, for instance, in the case of mandatory quarantine of an employers office, where the particular circumstances allow staff to continue their services from home.
Remote work in Great Britain
Flexible working has become a central consideration for companies across Great Britain since the pandemic began. However, while remote work has significantly increased during this period, the landscape is changing and recently there has been a move towards employees being required to come into the office more often. Many companies have allowed flexibility to work remotely for some time but some believe that this has had a negative impact on team culture and the ability to train junior staff and are now looking to find a way to encourage employees to return.
The current position with flexible working
At the start of an employment relationship it is open to an employer and employee to agree as to the employee’s place of work, which could be at the workplace, at home or a hybrid arrangement. Whichever location is chosen, there is a requirement to state the place of work within the employee’s written contract, which must be provided to them before they start work.
There is no regulation as to whether it is the employee or employer who provides the necessary work equipment where an employee works from home, and this can be subject to agreement. However, an employer has a duty of care in relation to the employee’s health and safety with regards to any equipment used to carry out their role, regardless as to whether they or the employee have supplied it.
It is often the case that an employee commenced their employment working from an office or other workplace but would now like the opportunity to be able to work from home for some or all of their working time. Employees In Great Britain do not have a right to work from home, however they can choose to make a flexible working request under the statutory scheme set out in sections 80F to 80I of the Employment Rights Act 1996 and the Flexible Working Regulations 2014.
Under the flexible working regulations, any employee who has been employed by their employer continuously for at least 26 weeks may make a request for flexible working, for any reason. This can include a request to change the hours that they work, to changes the times when they are required to work or to change their place of work, including working from home.
A flexible working request must be in a specified form for it to be considered valid and to trigger the statutory process. It must also, among other things, contain an explanation of the effects that the employee’s flexible working arrangements may have on the employer’s business and how these effects can be dealt with.
After receiving a flexible working request, an employer is under an obligation to deal with it reasonably and notify the employee of its outcome no later than three months after it receives the request. A flexible working request may only be refused on one or more of the following grounds:
The grounds for refusing a request are wide and cover a number of circumstances, providing employers with significant flexibility to reject a request where there are sound business reasons why working from home would not work for the organisation.
Claims and remedies
Should an employer neglect to follow the statutory procedures correctly, an employee can make a complaint to the employment tribunal. The tribunal cannot review the commercial reasoning behind the decision, although it can assess the extent to which the employer adhered to the relevant regulations. Should an employee’s claim be successful, a tribunal can make an order for the flexible working request to be reconsidered and/or for the employer to compensate the employee up to a maximum of eight weeks’ pay.
Although employees are permitted to make a flexible working request for any reason, employers should be particularly wary about how they respond to employees seeking to make flexible working requests in order to look after a child or due to them having a disability. Refusing a request in these circumstances without a valid reason could lead to a claim for discrimination.
Future reforms
Following the pandemic, the government began to respond to calls to make the right to request flexible working a day-one right. The result was the introduction of the Employment Relations (Flexible Working) Act 2023 which is due to come into force on 6 April 2024. This Act will make it easier for employees to make flexible working requests and many consider it to be a step forward for flexible working.
Summary of the key changes:
In making these changes, it is clear that the government intended to make it easier for employees to make a request to work flexibly but they stopped short of creating any absolute right to flexible working. They have instead favoured an approach which seeks to engage employers and employees in productive conversation regarding flexible work. This aims to strike a balance between employees’ interests in trying to have more control over their working arrangements and an employer’s right to organise their business in a way that they see fit.
In light of the changes in this area, it is highly recommended that employers with employees in Great Britain review and update their flexible working policies to ensure they remain compliant with their legal obligations.
Remote work under Italian regulation
Italian Law outlines three different types of remote work: (1) telework, (2) agile work, and (3) home manufacturing (in Italian, "lavoro a domicilio").
According to Italian regulations, agile work is voluntary; therefore, an employer may not impose it, and each side may withdraw from it by giving proper notice.
Agile work must be implemented through an individual work agreement signed between employer and employee. The Agile work could be a permanent agreement or a fixed-term agreement. An employee's refusal to perform agile work does not constitute grounds for dismissal, fair or justified reasons. Certain categories of employees have a right of priority in the event the employer implements agile work: parents of children under 12 or children with disabilities or, in case of employees with serious disabilities or employees who have caregiving responsibilities.
Employers do not have a statutory obligation to involve the work councils in implementing agile work agreements. Still, it is fairly common for the unions to insist on and negotiate such aspects as reimbursement costs, the organisation of agile work and other matters.
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Employers are required to report the names of the employees performing agile work to the Minister of Labour. Failure to report will result in a fine of 100 to 500 euros for each employee concerned.
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Non-EU national digital nomads performing a highly qualified activity through technological tools for employers not based in Italy need to obtain a work permit. A visa to enter Italy is sufficient, in which case they may obtain a permit to stay for up to one year (under the condition that they have health insurance coverage and are subject to compliance with tax and social security provisions).
Regarding eventual compensation for remote work, the law and the Interconfederal agreement on agile work do not obligate employers to provide equipment to agile workers.
Employers usually provide laptops and other similar devices necessary for the performance of agile work. The parties may, however, agree otherwise. The costs of maintaining and replacing the employer-provided tools required for the performance of agile work are borne by employers. Employees must immediately report any damage, loss, or theft of said equipment. There are currently no specific laws or regulations obliging employers to reimburse costs (such as electricity or internet bills) incurred by employees when performing agile work.
Currently, there are no special tax rules in favour of employees who work remotely.
There are no special rules on working time for agile workers: in fact, they are subject to ordinary working time provided in their employment contract and to the ordinary recording of working time through the "Libro unico del lavoro – LUL". One of the principles regulating agile work is the flexibility of working hours. Agile work may be based on the number of hours that are due. Agile workers may not change their required working hours, but they may flexibly determine when they perform their work (except for limitations agreed upon with their employer). In any event, agile workers may not exceed statutory working hours limits.
Regarding health and safety, employers cannot ensure in the same way the safety of the multiple other places from which an agile employee may work. Therefore, the employers are obliged to provide Agile annually with a written notification outlining the general and the specific risks related to the proper use of the equipment provided by their employers; employer and employee must agree on the safety requirements relating to the use of tools belonging to the employee. Arguably, in the event of accidents outside an employer's premises, employers are liable (including, if applicable, criminal liable) for any breach of their duty to protect the employees where the notice and the information provided to them were inadequate. However, they will not consider a breach in the case of accidents caused by the failure on the part of an employee to follow their employer's instructions.
There are no special rules specifically addressing the physical health of remote workers, but the ordinary rules are sufficiently broad to cover risks that remote employees may face.
Concerning data protection, employers are obliged to comply with data protection laws regarding the process of data related to agile employees and employment laws on remote monitoring of employees. The Interconfederal collective agreement on agile work recommends a data processing impact assessment in all ways be carried out, and death the policy be adopted concerning agile work that is consistent with the concept of security by design and with address the management of data breaches even the adoption of adequate security measures and provide training on the use, safekeeping and Protection of remote connection tools as well as on precautions to be adopted weed performing agile work and the management of data breaches.
Concerning the lability, employees who perform agile work are, in principle, entitled to the same Protection against accidents as other employees. Thus, work-related accidents suffered by agile employees are treated the same way as any other work-related accident. It may, however, be more difficult for agile employees to prove that the accident occurred during their work performance and not during their personal daily activities.
In Italy, there is a mandatory governmental insurance plan for accidents at work and occupational diseases, which also expressly applies to occupational accidents, and this is a raising from risk related to the work performed outside company premises.
Please note that some of the statutory regulations provided for remote work during the COVID-19 pandemic, continues to be applicable due to a legal extension granted for certain categories of workers. In fact, with Article 18-bis of Law No. 191/2023, which converted, with amendments, Decree No. 145/2023, the right to remote work in the private sector has been extended until March 31, 2024, for parents of children under the age of 14 and for 'fragile workers', meaning employees who, following an assessment by the competent medical, are found to be more exposed to the risk of Covid.
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Disclaimer
This information is for educational purposes only. It is not intended to be a comprehensive review of all developments in the law and practice, nor constitutes legal advice. It is recommended that specific professional advice is sought before acting on and applying any of the information given.