Provisions on remote work appeared in the Polish Labour Code almost a year ago. Their introduction was greatly influenced by the pandemic. Before lockdown, people working at home (in teleworking conditions) were rare. In the current post-pandemic reality, remote work (in full and hybrid model) is the basis for the operation of many companies or their teams, and is one of the benefits most sought after by job candidates.
The pandemic highlighted an important issue – lack of regulations governing all aspects of this form of work performance. Both the telework regulations in force at the time and the regulations contained in the Special Covid Law were unable to meet the needs and expectations of the parties to the employment relationship. The regulations on telework turned out to be too rigid and outdated – they did not reflect reality. In turn, the Covid regulations contained many traps that both employers and employees fell into – employers could not control employees, and the latter had to cover the entire costs of working from home. Due to the continuing epidemic situation and the increasingly louder demands of employers and employees, the legislator decided to abandon the existing regulations regarding telework and adopt new regulations enabling remote work. Although at first glance it might seem that the new remote work regulation is comprehensive, reality has verified it over the past year. In this case too, employers should carefully consider the decision to work remotely before agreeing to it.
Agreement on remote work and changes in working conditions: the need to change the contract in writing vs. email changes to working conditions.
The legislation lists two scenarios in which it is possible to agree on remote work: the first is when concluding an employment contract – when either full remote work is determined to be appropriate, or else remote-stationary work if parties agree on the hybrid mode. The second is during the employment – then remote work is an additional form of performing work for a given employee (in this case, remote work can also be performed in full or hybrid mode).
So the question arises as to which form of agreeing on remote work is more advantageous for the employer. Practice shows that it is the second scenario – when remote work is agreed upon during employment, especially when flexibility in modifying working conditions is considered. If remote work is agreed upon when concluding the employment contract, then any change in the terms of its performance, such as a change in the place of remote work, will need an amending agreement or amendment notice. And such a change should be made in writing, which is expressly provided for by law. However, if remote work is agreed during the provision of remote work, and a separate agreement is concluded in this respect, it does not constitute a change to the terms of the employment contract and, in addition, any change to the terms of its performance may also be made electronically, including by e-mail.
End of remote work: concluding an amending agreement or notice vs. application to discontinue remote work
The manner in which remote working commences is also important when withdrawing from the model of such work. If the parties agreed to perform work remotely when concluding the employment contract, then cessation of work will require an amending agreement or notice. However, if the principles of remote work were agreed upon during employment, each party may submit an application to discontinue remote work and restore the current working conditions within the time limit specified by the parties, and in the event of disagreement, within 30 days from the date of submission of the application. In the context of ceasing to work remotely, agreeing it during employment is more beneficial for both the employer and the employee. It gives both parties a guarantee of further cooperation after the end of remote work and disciplines both parties as to the deadline for restoring the current conditions.
(Almost) every remote-work application can be rejected
In practice, employers should pay special attention to privileged employees, including: pregnant women or workers raising children under four years of age, whose requests should, in principle, be taken into account. Many employers mistakenly believe that requests from privileged employees must be strictly accommodated. This is not the case, as the regulations state that in the case of privileged employees, refusal will be allowed unless remote work is not possible due to the organisation of work or the type of work performed by the employee. This formulation means that the employer’s obligation to enable remote work even for this group of employees will not be absolute, but the employer must justify their refusal by referring to the organisation itself or the type of work, respectively.
(Un)divided responsibility for health and safety conditions
In practice, you can often hear the statement that in the case of remote work, health and safety obligations rest with the employee – however, this is a mental shortcut that is misleading for many employers. According to the provisions on remote work, the employer is obliged to prepare an occupational risk assessment and draft occupational health and safety instructions, which will specify:
- The principles and methods of proper organisation of the remote work station, taking into account ergonomic requirements
- The principles of safe and hygienic performance of remote work
- Activities to be performed after completing remote work
- Rules of conduct in emergency situations posing a threat to human life or health.
The employee, in turn, based on the information prepared by the employer, will ensure ergonomic working conditions at their remote work station. This does not mean, however, that responsibility for health and safety in the case of remote work is divided between the employee and the employer – on the contrary, responsibility for health and safety still rests with the employer. The employee, as proof of ensuring OHS conditions, should submit a declaration that determines the possibility of remote work, but it is in the employers’ interest to check whether all OHS conditions are consistent with the regulations.
Control of a remote employee vs. the need to respect the right to privacy and property
A question that employers often ask concerns the actual possibility of controlling a remote employee. There is no doubt that the regulations give employers the right to control remote employees and such a solution should be assessed positively. Thanks to the ability to control employees, the employer can:
- Ensure that employees use their working time effectively
- Check whether the employee secures personal data and information that may constitute the employer’s secret and
- Verify whether the employees have ensured appropriate health and safety conditions, including work ergonomics
However, the control of a remote employee has its limits, which determine the employee’s right to privacy or property, and additionally, the regulations stipulate that each control must take place in consultation with the employee, at a time and place agreed with them. With regard to respecting employees’ privacy, employers often wonder whether they can oblige an employee to turn on a webcam during meetings or calls with clients, but the answer is simple: they can, to the extent necessary to control remote work, avoid employees’ doubts, it is worth including such a provision in the remote work regulations.
In the case of an inspection at the place of remote work, the employer should remember several basic issues:
- The inspection should always take place in consultation
- At a time agreed with the employee and within his working hours
- At a place agreed with them. Carrying out an inspection of remote work after a given employee’s working hours may be considered as overtime work and may result in the employee receiving additional benefits in this respect.
Apparent behaviour that may pose a real risk of mobbing
A problem related to remote work that employers must face on a daily basis, and which was not mentioned when the amendment was introduced, is the risk of mobbing of a remote employee. Employers often do not realise that mobbing – actions or behaviours concerning or directed against an employee, consisting of persistent and prolonged harassment or intimidation, causing the employee’s appraisal of their professional usefulness to be lowered, causing or aimed at humiliating or ridiculing the employee, isolating them or eliminating them from the team – can also occur when working remotely.
Working from home and not having direct contact with co-workers and supervisors does not eliminate this risk. Behaviours that could be considered mobbing includes:
- Persistently calling an employee at non-standard times
- Ridiculing an employee over the phone or during a videoconference
- Omitting an employee from invitations to videoconferences
This is why employers should adapt their internal anti-bullying procedures to the reality of remote working and carry out appropriate information campaigns so that employees are aware of what behaviour during remote working is unacceptable.
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Like any regulation, remote work has its pros and cons – while there is much talk about the former, the latter are usually only known to those who had to deal with them and are now learning from their own mistakes. The year of remote work was a year of challenges, as it turns out that to properly introduce and coordinate remote work, not only willingness is enough, but also knowledge and awareness of the pitfalls that lie in wait for them.
