Remote working – staying with us for longer

Remote working as defined in the Labour Code

The draft bill amending the Labour Code provides a definition of remote working, according to which work may be performed wholly or partly at a location specified by the employee and agreed with the employer on a case-by-case basis, including at the employee’s home address, in particular using means of direct remote communication. Remote work may therefore be carried out on a full-time basis as well as part-time, e.g. for 2 days a week, 5 days a month, etc.

The place of remote work will always be the location specified by the employee and subsequently agreed with the employer on a case-by-case basis. It is extremely important to determine the place of work; usually, the employee will prefer to work from home, but the parties may agree with the employer that the work will be carried out at a location significantly distant from the employee’s place of residence. However, the employee cannot unilaterally change the agreed place of remote work, as the employer has, amongst other things, the right to carry out inspections at the place where remote work is performed (as will be discussed below).

The employer may also, in certain situations, instruct the employee to work remotely. This option will, of course, be available in the event of a state of emergency, a state of epidemic threat or an epidemic, as well as during a period in which it is temporarily impossible to ensure safe and hygienic working conditions at the employee’s current workplace due to force majeure. The validity of the above instruction will depend on the employee submitting a declaration that they have the appropriate premises and technical facilities to carry out remote work.

What obligations do employers face in relation to remote working?

The rules governing remote working should be set out in an agreement concluded with the workplace trade union. Where there are no workplace trade unions, the employer sets out the rules for remote working in the company regulations following consultation with employee representatives. There is also nothing to prevent the terms and conditions of remote working from being agreed with the employee. In such a case, however, care must be taken not to apply different rules to employees, so as not to risk allegations of unequal treatment.

The employer will also be required to:

• provide materials and tools, including the technical equipment necessary for remote working,
• provide for the installation or maintenance of work tools or cover the necessary costs associated with this, as well as cover the costs of electricity and telecommunications services necessary for remote working,
• cover other costs directly related to the performance of remote work, provided such costs are specified in an agreement or regulations,
• provide the employee with training and technical support necessary for performing the work.

This does not, of course, mean that the employer will be obliged to purchase and install, for example, a printer in every employee’s home. If it is necessary for remote working and the employee already has one at home, the parties may agree on a cash equivalent or a lump sum corresponding to the anticipated costs incurred by the employee in connection with remote working, including the use of personal equipment.

Employer’s rights in relation to remote working

One of the key issues that previously prevented employers from allowing work from home was the fear that they would lose the ability to monitor the employee. Although remote working during the pandemic has shown that these fears were largely unfounded, the legislator has not left employers without the means to monitor employees. Thus, the employer will have the right to monitor the performance of remote work by the employee, as well as to monitor health and safety at work and compliance with information security requirements, including personal data protection procedures. Inspections may be carried out in consultation with the employee at the place where remote work is performed during the employee’s working hours. The performance of inspection activities must not infringe upon the privacy of the employee working remotely, nor that of other members of their household.

When will the amendment come into force?

According to media reports, we can expect the amendment to the Labour Code as early as this autumn. At the time of publication of this article, the draft bill has been referred to the Special Committee on Amendments to Legislation (you can follow the amendment process via this link).

Author

Agata Bączkowska

Adwokat, Senior Associate

She specializes in commercial and civil law. She has gained experience in Warsaw law firms providing comprehensive services to companies and a law firm specializing in labor law. She has extensive experience in corporate consulting. She has participated in mergers and acquisitions at every stage of the process, from pre-transaction legal examination to fulfillment of regulatory requirements related to the transformation process. She prepares and reviews contracts entered into by clients and advises in cases of…

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