Telework

What is Telework?

Telework allows employees to perform their work remotely using information technology, such that work which could also be performed by employees at the employer’s premises is carried out away from those premises on a regular basis.

What are the benefits of telework?

Potential benefits of telework arrangements may include:

1. retention of trained employees who might otherwise have to leave for domestic reasons, resulting in savings on the recruitment and training of new staff;
2. reduction in cost and office accommodation space;
3. an opportunity to engage personnel in locations in which the employer does not have an office;
4. enhanced quality of life for employees due to a better work life balance, and increased flexibility for combining work and domestic commitments; and
5. promotion by the employer of equal opportunities for all its employees or potential employees, particularly individuals with disabilities.

How can telework arrangements be formalised?

Telework may be required as a condition of employment in an employment contract or, where there is no mention of it in the employment contract, by agreement between the employer and an employee in the course of their employment relationship.

If there is no specific reference to teleworking in the employment contract and telework is undertaken in the course of the employment relationship:

1. if the employer makes an offer of telework, the employee is free to accept or refuse this offer. Refusal to do so may not constitute a good and sufficient cause for terminating employment, nor may it lead to a change in the conditions of employment of the employee concerned;
2. if an employee expresses the wish to opt for telework, the employer may accept or refuse such request;
3. the passage to telework does not affect the employee’s employment status nor his right to revert back to his previous post or, in the event that this is not possible, to another similar post; and
4. where both parties agree to a telework arrangement, each party is entitled to terminate that telework agreement and the employee would revert to his pre-telework post. If the decision to terminate the agreement on telework is taken by the employee, that decision would not constitute a good and sufficient cause for terminating employment, nor may it lead to a change in the conditions of employment of the employee concerned.

What should a telework agreement include?

An agreement for the performance of telework must be in writing and, apart from including such information as is required to be included in every employment contract pursuant to applicable law, is also required to set out written information which is particular to telework, including:

• the location where telework is to be carried out;
• provisions related to the equipment used for telework including its ownership, maintenance, liability and costs;
• the amount of working time to be spent at the place of telework and at the workplace;
• the schedule by which the employee will perform telework, where applicable;
• the description of the work to be performed;
• the department of the undertaking to which the teleworker is attached, the teleworker’s immediate superior or other persons to whom the teleworker can report and reporting arrangements;
• provisions related to monitoring, if any;
• notice of termination of telework agreement; and
• in cases where telework is undertaken in the course of the employment relationship and there is no reference to teleworking in the employment contract, a reference to the right of reversibility by either party, including the right of the teleworker to return to his pre-telework post.

What other duties does an employer have?

Teleworkers must be allowed to enjoy or continue to enjoy the same rights laid down in any applicable law, any applicable individual agreement or in any applicable collective agreement as comparable employees at the employer’s premises.

The employer must also ensure that teleworkers have the same rights of access and rights to participate in training and career development programmes provided by or on behalf of the employer, in the same manner as comparable employees at the employer’s premises. Teleworkers must also be subject to the same appraisal policies as comparable employees.

Respect for the privacy of teleworkers is also important. The employer may only put in place any kind of monitoring system if this is agreed to by both the employer and the teleworker in the written telework agreement Such monitoring system must be proportionate to the objective and must be introduced in accordance with Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment.

Unless otherwise agreed upon by the employer and the teleworker in the written agreement on telework, the employer is responsible for providing, installing and maintaining the equipment necessary for the performance of telework and for providing the teleworker with an appropriate technical support facility. Moreover, the employer must compensate or cover the costs relating to communication directly caused by telework.

The employer is also required to take the measures necessary to prevent the teleworker from being isolated from the rest of the workforce, such as giving the teleworker the opportunity to meet with colleagues and to have access to information related to his work.

The law emphasises the importance of data protection, by requiring the employer to take the appropriate measures, particularly with regard to software, to ensure the protection of data used and processed by the teleworker in the carrying out of his duties. In this respect, the employer must inform the teleworker of the provisions of applicable data protection legislation, as well as the measures taken by the employer in this respect, including any restrictions on the use of IT equipment, internet or other IT tools and any sanction in case of non-compliance.