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20 May 2020
What seemed hardly imaginable months ago has become a reality as a result of the COVID-19 pandemic: sizeable teams in various companies had to switch to remote working within a few days and have now been working remotely for several weeks.
This situation causes challenges to both employees and employers from many perspectives. Companies must find new ways to establish efficient cooperation and foster information flow within teams and help to prevent team members from suffering any negative effects of social isolation. This article highlights some of the legal challenges caused by the sudden introduction of remote working.
Although occasional remote working was a widespread practice before the COVID-19 outbreak, the legal basis and concept of 'working from home' was not precisely regulated. Hopefully, the experience gained from the COVID-19 crisis will help to develop more accurate regulations in this regard, especially as remote working will likely be more common following the pandemic.
Although the Labour Code does not require parties to agree on the place of work in employment contracts, it often forms a part thereof. Thus, how to legally interpret the concept of 'remote working' remains a matter of debate. In the European Union, legal interpretations describe remote working as:
Some legal systems require employment contracts to be modified and both parties' consent to (even occasionally) change the place of work. In some countries, employment contracts may provide a unilateral 'relocation clause' in favour of the employer, which may serve as a basis for ordering remote working.
Due to the COVID-19 state of emergency, Hungarian employers can unilaterally order remote working. Such orders remain effective only until 30 days from the end of the state of emergency.
One of the biggest challenges of remote working is maintaining work safety. As employers are obliged to provide a safe workplace, they must ensure that their employees' home offices are fit for purpose (ie, they comply with health and safety law requirements). Employers must check their employees' workplaces and authorise their use in advance. They must also:
During the COVID-19 crisis, many employers have been unable to fulfil these obligations and physically inspect employees' workplaces. Some employers have asked employees to take photos of their workplaces and provide a description of the equipment used. Although such measures can be helpful in practice, they are no substitute for a proper inspection and risk assessment. That said, the authorities are expected to be more forgiving with employers that were unable to completely fulfil their duties during the COVID-19 pandemic.
The control and supervision of remote working employees also poses challenges.
On the one hand, employers must organise the work and administer, record and monitor working and rest times. Remote working employees naturally have greater flexibility with respect to working time. While it seems simple to set a work schedule from, for example, 9am to 5pm each day, the administration of the actual time worked, breaks and potential overtime could be difficult. Potential solutions include:
On the other hand, such IT tools must be used carefully. According to the Hungarian Data Protection Authority guidelines, constant monitoring or surveillance methods (eg, webcams and live chats) disproportionately restrict employees' right to privacy. Similarly, constant data collection from the IT tools used by employees may be regarded as excessive monitoring. 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.
Remote working can also be a risk for employers, as they must set up and operate systems which provide for increased IT security. Employees must be trained on how to preserve the confidentiality of corporate information while remote working and informed on precautionary measures to take. In this regard, employers enjoy a significant level of freedom and employees must cooperate.
The extended use of remote working will certainly provide an opportunity to establish new, more economically sustainable and user-friendly working methods and create new platforms for work in the 21st century. During this process, the legislature and legal professionals will be tasked with working out solutions to preserve and safeguard the rights and interests of all parties.
For further information on this topic please contact Dániel Gera at Schoenherr Hungary by telephone (+36 1 8700 700) or email (firstname.lastname@example.org). The Schoenherr website can be accessed at www.schoenherr.eu.
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