In recent days, efforts to moderate and partially repeal restrictive / prohibitive measures aimed at curbing the spread of the coronavirus have become more and more active in both the surrounding countries and in Hungary. In our newsletter today, we look a little ahead and look at labour law issues that may be relevant after the negative effects of the epidemiological situation have abated.
Can the golden age of the home office come?
In the case of companies whose activities allow it, the staff, or a significant part of it, has recently switched to “home office mode” having regard to the declared state of emergency. Many companies have resorted to ordering a home office as a coercive solution to the current extraordinary situation, so that this form of work (and its efficiency) is put to the test in a period that is already burdensome due to a number of other circumstances.
It could easily happen that, depending on the experience gained in the current period, company executives will prefer to apply work from home even after the consolidation of economic life. In addition to that ensuring working in the home office more widely may require a rethinking of the material conditions (e.g. office rental, its equipment, provision of work equipment, etc.) of daily operation that are considered as commonplace in “peacetime”, it is worth considering now how the legal framework for working from home needs to be established.
What are the legal forms of working from home?
The concept of teleworking used by the Labour Code is often confused with the home office, but in terms of legislation and its content, a sharp line needs to be drawn between teleworking and employment derogating from the employment contract as possible ways of working from home.
Employment derogating from the employment contract
In preparation for the post-pandemic period, it is worth reviewing the wording of employment contracts now, because if only the employer’s registered office has been indicated as the place of work, then the work at home to be ordered is considered to be an employment derogating from the employment contract. This is important because the duration of employment derogating from the employment contract is limited on an annual basis by law: the maximum is 44 working days or 352 hours. Thus, if the employer thinks that the home office intended to be implemented would consume a larger quota in terms of working time, it may be appropriate to indicate the place of work in the employment contract with this in mind.
In order for the conditions of working from home to be clear (and at the same time accountable), it also seems necessary to draw up a relevant employer policy. However, such a regulation, like other regulations (e.g. the use of a company car), qualifies as a unilateral legal statement of the employer, so the employees’ consent is not required for its adoption.
Teleworking, on the other hand, is a special form of employment which allows regular work from home and for which it is a conceptual element that the worker performs the work using a computer device and transmits the result electronically. The teleworking clause must necessarily be part of the employment contract.
Please note that in the above we focused on the post-pandemic period in respect of both employment derogating from the employment contract and teleworking, as a basis for preparation, but currently interim rules are in effect for both forms of employment: the employer may unilaterally order telework during the duration of the state of emergency and for 30 days after its cessation (so there is no need to agree on this in the employment contract), and the above-mentioned annual limit does not apply to employment derogating from the employment contract.
The 2-year working time framework – when will the measure bear fruit?
Probably several of our readers have encountered the possibility of implementing an averaging arrangement for up to 2 years unilaterally by the employers. This measure of the employer is an opportunity that can be used in the current extraordinary period, which, however, if taken, will clearly give rise to its substantive effect only after the end of the state of emergency. This tool can ultimately also help executives be able to retain their current staff.
By the fact that the length of the working time framework can be extended to up to 2 years, the working time can be divided in such a way that in the current, less prosperous period the employer orders less work, while in the future it orders more work. However, we draw your attention to the fact that other unchanged regulations on working time framework must be complied with.
Wage adjustment; termination of unpaid leave
During the state of emergency, many companies used the collective wage reduction tool to temporarily reduce expenses, which required changes to the individual employment contracts concluded with the workers. When the company’s management sees the time has come to “restore the original condition”, another wave of contract modification will be needed to adjust wages.
Also in the case of unpaid leave (which is also a widely used crisis management institution), bilateral agreements between the employers and the employees were required. These agreements were often concluded for a fixed period; in this case, the unpaid leave shall end at the end of the specified period. In contrast, the repeal of an agreement of a duration not maximized by an exact date will require the approval of both parties.