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By Anna Kencel, trainee advocate, lawyer and Bartosz Wszeborowski, advocate, senior lawyer, PCS Paruch Chruściel Schiffter Stępień Kanclerz | Littler

 

 

The topic of work-life balance has been at the forefront of the Polish labour market in recent months, all thanks to the implementation of the EU directive in this area. Making working hours more flexible, increasing digitalisation, and the possibility to work from different parts of the world – all to help employees maintain work-life balance. At the same time, this is the result of listening over the years to the needs of employees who are increasingly struggling with workaholism and work burnout.

There is no doubt that, in this respect, it was the coronavirus pandemic that was the catalyst of the breath of fresh air in the labour market. The introduction of remote working as an alternative and, during the pandemic, dominant form of work resulted in reorganisation of the way we work and, consequently, a relatively rapid blurring of the boundaries between the professional and private spheres. Making working hours more flexible in the long term began to mean extending them. The increasing sense of obligation to remain permanently available to the employer has led to the emergence of the ‘constantly available employee’ culture. In fact, it has become the norm to expect an employee to answer company phone even after working hours and to respond to emails as quickly as possible, even at the expense of their rest time. Those who are constantly available have even started to be perceived as more committed to their work than other employees, which can lead to problems in the long run. On this ground, the need to regulate the right to be offline arose, and has been addressed by the European Parliament.

Will the work-life balance goal be achieved?

We will certainly have to wait for an answer. Anyone who has been following the changes that are taking place on the European – or more accurately Polish – labour market will have already noticed the direction in which the young generation of workers is heading. They are not willing to sacrifice their free time free of charge after hours for their own ambitions. They work to live – not the other way around.

One of the manifestations of work-life balance is undoubtedly remote working. An idea that deserves the approval of both employees and employers. Workation sounds even better. The thought of working from the garden of a five-star hotel in Mallorca can be dreamy. Until the clock strikes 5pm and the work phone doesn’t stop ringing. Just one more call, checking one more thing, which will take no more than 15 minutes … sounds familiar? Probably.

You have to be able to work remotely

The stretching of working hours over time may be due to at least two reasons:

  1. Either work or holiday – when working remotely, especially when we combine it with a holiday, we are more distracted and find it harder to concentrate on our work and easier to get distracted. As a rule of thumb, we are less efficient and find it difficult to complete assigned tasks in the time provided,
  2. The working hours of remote workers do not coincide – some prefer to start work at 7 a.m. and finish at 3 p.m., while others prefer the afternoon hours. This is problematic when afternoon workers need input from morning workers to complete their tasks.

The organisation of working time is therefore an issue. To a greater extent, this will be the case for positions that, due to their responsibilities and place in the employer’s organisational structure, require more cooperation with others. The solution in such a case may be to set some rigid rules within the structure of the employer concerned for remote working and contact with other employees.

Where did the interest in the right to be offline come from?

Currently, there is no European or Polish legal framework directly defining and regulating the right to be offline. The origin of this idea can be found in a paper by the European Foundation for the Improvement of Living and Working Conditions (Eurofound). It indicates that the right to be offline can be understood in two ways: as an employee’s entitlement to refrain from working outside of working time via digital tools, or as an employer’s obligation to ensure that employees do not work during rest and holiday periods.

According to Eurofound’s findings, in July 2020, nearly half of respondents were working remotely at least part of the time and a third were working exclusively from home due to the coronavirus pandemic and isolation measures. In addition, up to 27% of those working from home admitted that they worked in their spare time to cope with their workload. Workers are increasingly becoming unable to disconnect from work, which over time leads to physical and mental health problems such as stress, anxiety, depression and burnout, as well as having a negative impact on balancing between work and rest. It will come as no surprise to find that many employers whose businesses switched almost entirely to remote mode during the pandemic faced perceptions of employees who were no longer 100 per cent productive when working from home. In the long run, this would be associated with a deterioration in the performance, as well as the profits, of such companies, so outsourcing more tasks might have seemed like a good solution at the time. Informally, the digitalisation of work and the pandemic has shifted the focus somewhat from a basic working time system focusing on daily and weekly working time standards to a task-based system based primarily on performance.

In the European Parliament’s resolution of January 2021, there was a call for the Commission to include the right to be offline in the new health and safety strategy. This is because it was pointed out that constant connectivity, coupled with the high demand for work and the increasing expectation that workers are reachable at any time, can have a negative impact on workers’ work-life balance, as well as on their health and physical and mental wellbeing.

Directive on the right to be offline

With the resolution presented to the Commission, the European Parliament submitted to the Commission a proposal for a draft directive on the right to be offline.

The right to be offline should generally be described as the right of employees to switch off their digital tools, including means of communication used for work purposes, outside of their working hours without suffering the consequences of not responding to emails, not answering phone calls or not responding to text messages.¹

The European Parliament’s intention is that the right to disconnect should be equal for all. It will be available to all workers using digital tools for professional purposes. The draft does not provide for subjective exemptions based on status, form of organisation of work, industry or sector. There are also no subjective exclusions depending on the form of activity of the employer.

Currently the European Trade Union Confederation and BusinessEurope negotiate, what could end in a few months with the implementation of a new law to give millions of Europeans the right to be offline after working hours.

The length of proceedings in such a case cannot exceed nine months, unless the social partners and the Commission jointly decide to extend it. It is therefore possible that a regulation on the right to be offline will emerge at EU level in the middle of this year.

Position of the Ministry of Family and Social Policy in Poland

The Minister of Family and Social Policy took a position in this regard in his answer to interpellation No. 31956 of 4 March 2022 “on business messages sent outside working hours”. The question posed there was as follows: “Is it possible to introduce appropriate provisions to ensure a proper balance between working time and rest for employees?”.

In the Ministry’s view, there is no need to do so. Neither the current provisions of the above-mentioned Act of 2 March 2020 temporarily regulating remote working, nor the legal solutions proposed in the draft amendments to the Labour Code, provide for specific regulations as regards the working time itself of employees working remotely. The Minister pointed out that this is because the issues concerning an employee’s remaining in contact with the employer after normal working hours (i.e. within the working time resulting from the employee’s working time schedule) are regulated in the same way in the case of work performed in a stationary mode and in the case of work performed remotely. As argued by the Minister of Family and Social Policy, ‘remotely’ only means a different designation of the place of work, which is usually the employee’s place of residence (and not, for example, the workplace), while remaining unaffected by the organisation and settlement of the employee’s working time. The conclusion is, therefore, that there is no need to introduce additional regulations, because – as the Minister explained – on the basis of the provisions of the Labour Code, this right is guaranteed to employees by the provisions on working time, in particular concerning the norms, dimension and schedule of working time, overtime work, on-call duty and periods of minimum uninterrupted daily and weekly rest.

¹ https://www.europarl.europa.eu/doceo/document/A-9-2020-0246_PL.html#_section3