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17 February 2021
Definition of 'teleworking'
Regular or occasional teleworking
Agreement between employer and employees
Role of staff delegation
Removal of adjustment period
Organisation of teleworking
Equal treatment with traditional workers
Respect for employees' privacy
The Grand-Ducal Regulation of 22 January 2021 declaring the convention of 20 October 2020 on the legal framework for teleworking a general obligation, was published in Mémorial A 76 on 29 January 2021 and entered into force on 2 February 2021.
This article highlights the main points introduced by the teleworking convention.
All employees covered by the Labour Code fall under the scope of the convention, apart from:
Teleworking is a form of organising or carrying out work, generally using information and communication technology, so that the work, which would normally be carried out in the workplace, is carried out somewhere other than these premises. The convention does not specify employees' homes as the location of teleworking.
The convention specifies that teleworking is occasional when:
Teleworking is regular in all other cases.
Teleworking always depends on the willingness of the parties, in that it must be established only by mutual agreement between the employee and the employer. The convention stipulates the following procedure: a written agreement between the employer and the employee is required for regular teleworking, whereas written confirmation given by the employer to the employee authorised to telework is all that is needed for occasional teleworking.
For regular teleworking, the written agreement must contain:
Article 4 of the convention specifies that these elements can also be defined within the context of a specific teleworking scheme defined within the company or the area of business, via a collective agreement or a subordinated agreement, or at the company level, depending on the authority of the staff delegation.
The staff delegation is kept regularly informed of how many people are teleworking and how this situation is evolving within the company. Further, the staff delegation must be informed and consulted before a specific teleworking scheme is introduced or changed within the company and must give its approval on this matter in companies with at least 150 employees.
The convention no longer stipulates an adjustment period (ie, the right to return to the traditional way of working) when teleworking is introduced during the course of a contract.
The convention stipulates that for regular teleworking, it is up to employers to provide the equipment needed for the teleworking and to cover the costs directly incurred by the telework. This can be in the form of a fixed monthly total to be agreed in writing by mutual agreement. Employers are fully responsible for the costs connected with the loss of or damage to equipment and data used when work is carried out remotely, apart from cases of gross negligence or deliberate damage by employees, in accordance with Article L 121-9 of the Labour Code.
The convention specifies that "the organisation of working hours follows the rules applicable within the company" and that the parties must agree how overtime hours will be worked, keeping as closely as possible to internal procedures. Employers must ensure that overtime is an unusual occurrence. Further, any provision relating to the right to disconnect must apply fairly to traditional workers and teleworkers.
Employers must ensure that the principle of equal treatment is respected, in particular in terms of:
The convention specifies that "employees must not be subjected to any discrimination due to their status as teleworkers".
Teleworkers can request an inspection visit from the company's occupational health department, the health and safety representative or the Labour Inspectorate. However, the new convention removes the right to access the site of teleworking previously enjoyed by the employer, the health and safety representative and the competent authorities.
Employers are responsible for the risks incurred by the company's business, including within the context of teleworking. In particular, employers must:
Employers are still bound by information obligations relating to the company's relevant data protection rules and policy on health and safety in the workplace. Training for teleworking is employers' responsibility when necessary or requested. However, the new convention no longer stipulates that employers must:
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (firstname.lastname@example.org or email@example.com). The Castegnaro website can be accessed at www.castegnaro.lu.
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