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).
Frequently asked questions
Can I independently change the place where I perform remote work?
No, an employee cannot unilaterally change the place of remote work performance agreed upon with the employer. This place must be established jointly each time, and the employer retains the right to control at this place. Therefore, any change requires the consent of both parties to the employment relationship.
Must the employer provide me with computer equipment at home?
The employer has an obligation to provide necessary tools and cover costs related to their use, but does not have to purchase new equipment if you already have the necessary private equipment. In such case, the parties may establish a monetary equivalent or lump sum to cover the costs. The final method of compensation depends on the agreement with the employer.
Can the employer enter my apartment to control my work?
Yes, the employer has the right to conduct control at the place of remote work performance, but must do so in agreement with the employee and during their working hours. The control cannot violate the privacy of the employee or other household members. All control activities must comply with safety and data protection principles.
Can the employer force me to work remotely without my consent?
The employer may issue a remote work order only in specific situations, such as an epidemic state or inability to ensure safe conditions in the office. However, the effectiveness of such an order depends on your declaration that you have appropriate premises and technical conditions. Without meeting these conditions, the employee does not have to accept the order.
Who bears the costs of electricity and internet for remote work?
The employer is obligated to cover the costs of electricity and telecommunications services necessary for performing remote work. They may also cover other costs directly related to work if they have been previously specified in an agreement or regulations. These rules aim to balance the burdens resulting from working from home.
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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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