Legal framework for remote (location-independent) working
When there is no clear-cut boundary between work and private life.
SW – 09/2020
During
the coronavirus pandemic, remote working and flexible working have taken on a
new dimension. Companies have significantly expanded these forms of work to
ensure the safety of their employees throughout the pandemic, whilst also
maintaining business operations. In May 2020, the European Commission
emphasised their importance for securing jobs and production in its notice on the country-specific recommendations .
Home Office Act
Remote working and flexible working can
also offer many benefits to the way we organise our daily lives, such as
shorter commuting distances, a better work-life balance, lower commuter traffic
and subsequently, positive effects on the environment. As much as working in
the home office can make an important contribution to this, it also involves
risks, for example in terms of prevention and occupational safety. Lack of
physical activity, working in isolation and blurring of the boundaries between
paid work and private life are just a few examples.
In order to be able to use the freedom that
comes with remote working in the home office but also to protect against the
risks, in April this year the Federal Minister of Labour and Social Affairs,
Hubertus Heil, announced that he would present a draft law for a Home Office
Act this autumn. This should legally protect employees from, amongst other
things, the complete blurring of the boundaries between work and private life
and to prevent them from having to be available to their employers around the
clock.
Right to disconnect
The risks of blurring of boundaries between
work and private life are also being discussed at European level. The competent
European Parliament Committee on Employment and Social Affairs (EMPL Committee)
is working on a draft report with recommendations to the Commission (2019/2181/INL),
calling for a directive to allow workers exercise their right to disconnect
(see report 8/2020).
The European Commission seems to be rather
reluctant to act as a result of the regulations already in place. In response
to an enquiry from a Member of the European Parliament on a
European legal framework for remote working, it referred to the 2002 social
partners' framework agreement on remote working, which constitutes a general framework of working
conditions for remote working at European level. Furthermore, in June 2020, the
European social partners signed a new framework agreement on digitisation. The agreement, which includes the provision
of guidance and information on compliance with the rules on working time,
remote working and flexible working, covers all employers and their employees
in the public and private sectors and all economic activities. Both framework
agreements are non-binding at both national and EU level. They are to be
implemented by the members of the signatory parties in accordance with national
procedures and practices specific to the social partners.
With regard to working time, the European
Commission refers in its reply to Directive 2003/88/EC on certain aspects of
the organisation of working time, which applies to all types of work, including
remote working. It is the responsibility of each Member State to ensure that
the laws, regulations and practices implementing the Directive are complied
with.
The representative of the European
Commission expressed a similar view in a debate on the subject held by the EMPL
Committee on 10th September 2020. The role of the social partners, who played a
key role, was underlined and pointed out that a comprehensive legal framework
already in place. All this had an impact on the issue and all further
legislation would have to fit into this framework. It remains to be seen
whether the European Commission will respond to the European Parliament's
request and present a proposal for a law on the right to disconnect in line
with its recommendations.