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Members of leading international employment law alliance Innangard address the new challenges employers are faced with, now that teleworking is becoming a new post-pandemic normal. This is a transcript summary of part of the podcast published in March 2022. Listen to the podcast in full here.

The panel was hosted by Mathilde Houet-Weil from Weil & Associés in France and features contributions from Paul Cahill from CC Solicitors in Ireland, Juan José Hita Fernandez from Augusta Abogados in Spain, Carl Fredrik Hedenström from Morris Law in Sweden, and Dr. Ulf Goeke from Seitz in Germany.

Can teleworking be imposed by either the employer or the employee now that it is no longer mandatory?

Carl (Sweden) Teleworking has been recommended in Sweden but was never mandatory. Now that most restrictions are lifted, we are back to normal and back to the regular employment contract. Unless you have an allowance in your contract for teleworking, teleworking cannot be imposed by either the employer or employee.

Paul (Ireland) Similarly to Sweden, teleworking has been a recommendation. However, the government, under the National Remote working Strategy, passed a bill that allows employees to make a statutory request to their employer to work remotely. The employer is obliged to consider the request and respond. The employee can appeal to the employer«s decision. It remains to be seen what the act looks like when is approved later this year.

Juan Jose (Spain) Remote working is not mandatory on the part of the employer, is voluntary and must be agreed in writing with the employee. A law approved back in July 2021 makes clear under what circumstances can remote work take place. Remote work is considered when the employee works from home more than 30% of the working time in a period of three months. The law also states that remote work can be reversed by either party.

Ulf (Germany) Outside the pandemic, the employer cannot impose remote working and the employee cannot demand to telework. During the pandemic, there was a mandatory obligation to work from home whenever feasible. Now we will fall back to the situation pre-pandemic. However, the new government has suggested that it would make it in some form mandatory for employers to allow employees to work from home if that is feasible. That has been contested by the employers« federation but remains to be seen what will happen.

What if the employee teleworks from outside of his home and potentially abroad, including without prior authorization from the employer? What are the risks and how can employers avoid them?

Paul (Ireland) We have come across cases when employees are working from a different jurisdiction sometimes without notifying the employer. What we recommend is that employers have a remote working policy in place that governs the rules around remote working and when it can be done from and what the processes are for that. It will be a requirement under the Right to Request Remote Working bill, once becomes enacted, so there is a good idea to put it in place anyway. There is a risk that the employer can be eligible to statutory rights in the other jurisdiction.

Carl (Sweden) Since employees have now an obligation to show up if the employer asks you to come to the office, I would say that if someone is working abroad without authorization, it could lead to disciplinary action or termination. We also should consider the problem for employers: it may create a permanent establishment in the country where an employee is working from. There also might be problems insurance-wise if something happens such as an occupational accident. In that case, the employer«s insurance in Sweden should also cover the employee who works abroad.

Juan Jose (Spain) With remote working the covering jurisdiction can be difficult to determine in the event of disputes or even at the beginning of an employment contract. It could either be the place where the employee renders her services or the place of the establishment that hire the employee at the beginning. In our experience authorities see the place where the employee works, his or her domicile, attracts competency for the domain in the tax residency and in case of disputes. It is a sensitive issue and can get difficult when there is a mixture of the employee working a few days over the week at home in Spain and the remaining part of the week in London and the work in Spain qualifies as remote work. From the Spanish perspective, there is always a degree of protection on the part of the employees.

Ulf (Germany) In Germany, it is comparable as we work under the same EU rules and conventions here. I think the main difference one should look at is whether it's occasional work from abroad (a couple of weeks or less than 183 days a year) or if the employee moved abroad and has changed his permanent residence. This triggers other issues such as applicable law, competent court, and social security.

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Listen to this and other podcasts on our Innangard channel.

Continue reading Part 2 and Part 3