Written by: Colin Leckey, Sean Dempsey, Hannah Price, Kathryn Weaver, Lewis Silkin, Lewis Silkin (Hong Kong)
The fundamental shift in working patterns and preferences created by COVID-19 has led to law and policy changes across the world.
Across the world, the closure of offices during the pandemic accelerated the expansion and popularity of remote working, making this arrangement an overnight reality for millions. As it becomes clear that working patterns and preferences have changed for good, many jurisdictions have or are putting in place legislation and guidance to manage a more permanent transition to remote or hybrid working arrangements.
During mandatory lockdowns, the decision whether to permit homeworking was largely taken out of employers’ hands. Over the past year, however, many countries have been grappling with the extent to which the employer can control flexible and remote working, and how to deal with the practicalities and costs of these arrangements.
In France, the Court of Cassation (the Supreme Court) ruled that an employee could not unilaterally decide to work offsite – the employer’s consent was required. In Greece, whether or not a remote working arrangement requires the employer’s consent depends on the type of work and arrangement in question, with the newly amended Labour Law defining different categories of remote working. Prior to the pandemic, Greece had one of the lowest levels of remote working in the EU. Now the practicalities of this working arrangement, including the employer’s obligation to subsidise associated costs, are comprehensively addressed in law.
July 2021 saw Spain pass the Remote Work Act, applicable when at least 30% of an individual’s work is done remotely. Under this legislation employers must ensure various matters are covered in a written remote working agreement, provide all necessary materials, and compensate the employee for expenses relating to remote working.
Luxembourg has introduced legislation requiring companies with 150 or more employees to secure agreement between the employer and staff delegation if a company-wide remote working agreement is to be changed. This now forms one of only eight matters for which such an agreement is needed.
Recognising the dangers of blurring home and work, revised regulations in Norway (in force from July of this year) have strengthened the need for compliance with the terms of homeworking agreements, through the introduction of oversight by the Labour Inspection Authority. Similarly, in Poland, remote working looks set to be permanently incorporated into the Polish Labour Code from August. These changes will govern when remote working is permitted, and what associated costs will be borne by the employer.
In Ireland, flexible and remote working has been a focus for both the courts and legislature. A case heard by the Workplace Relations Commission clarified that, while there is no general right to work from home, employers will be expected to consider remote working requests thoroughly, and to have strong reasonable grounds for refusing to facilitate them. The absence of a legislative framework for handling such a request is set to change, with the publication of the Right to Request Remote Working Bill earlier this year. This will give employees with six months’ service the right to request remote working. This is subject to the employer’s agreement, but refusal must be based on one of the reasons listed in the legislation. The Bill has come under a lot of criticism so it’s likely to be significantly amended before it is finalised. Flexible working requests from parents or carers will soon be backed up by law as a result of a new Bill to enable those with caring responsibilities to request flexible working arrangements for a set period of time. This is to implement the EU Work-Life Balance Directive. Separate proposals to allow all employees to make flexible working requests are also in place.
The upcoming changes in Ireland echo new laws introduced earlier this year in Portugal. Now a request for a remote working arrangement made by an employee with a child up to the age of eight cannot be refused, provided certain conditions are met; a request from someone with children up to the age of three cannot be refused in any circumstances. In other cases, a refusal needs to be in writing, stating the reasons. In terms of expenses, it’s again down to the employer to cover the cost of equipment and energy costs, an increasingly significant consideration for households across Europe.
Remote working requests in the Netherlands may also acquire more legal clout. Here the aptly named ‘Work Where You Want’ Bill would amend existing flexible working legislation and require an employer to grant a request for remote working unless it can demonstrate compelling business reasons not to do so.
In the UK there are no specific legislative changes to address hybrid or remote working, and any such requests would need to be accommodated within the existing flexible working regime. Limited reforms to this legislation, including the right to make a flexible working request from day 1 of employment are under consideration. Germany also has yet to introduce any legislative changes, but the Federal Ministry of Labour is drafting a law that would provide for an entitlement to remote working.
In South America, legislation was introduced in Argentina in March 2021 to regulate remote working. Amongst other things, the parties now need a written remote working agreement, and the employer must bear the cost of equipment and expenses. In Brazil, under revised legislation, disabled employees and those with young children should be prioritised for hybrid and remote working arrangements. New legislation is also expected to be approved shortly which will result in collective agreements applicable to the company’s office applying equally to remote workers and provide confirmation that remote workers in the telecommunications industry are not exempt from working hour requirements.
A shift to remote working was a significant change to working culture in Japan. Although not legally enforceable, in March 2021 guidelines were introduced to help promote positive and effective remote working schemes, balancing appropriate management control against positive working patterns for employees.
Finally, remote working literally opens up a world of possibilities. An increasingly common, and also challenging, issue is that of employees who wish to work from ‘home’, either on a temporary or permanent basis, from an overseas country. One recent example of a potential host country seeking to facilitate this was the introduction of a remote working visa in the UAE in April 2021. This allows foreign nationals to live and work in the UAE, while remaining employed in their home country. Unlike Employment Residence Permits, this does not require local company sponsorship. Meanwhile in Italy, as of April 2022, non-EU nationals who carry out a ‘highly qualified’ job remotely are able to enter the country without a work permit and obtain a residence permit for one year, provided they have adequate health insurance and comply with Italian tax and social security provisions.