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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.

What is the role played by works councils and unions concerning Teleworking?

Ulf (Germany) There are work councils in Germany and you should set up guidelines for number of topics which are under code determination with works councils in Germany. The order of work, working time, technical equipment, safety and health, all that is regulated so you cannot impose a teleworking guideline without the consent of the works councils. That might lead to extensive negotiations and bargaining situations where maybe you have to balance things against one another. It is common to have elaborate works agreements with big companies regulating every aspect you can think of with regard to working from home.

Paul (Ireland) There are works councils in Ireland but they wouldn't be something we commonly encounter in terms of the dealings of the Irish trade unions, they've been critical of the Right to Request Remote Working bill in just outlining that the appeal mechanism at the moment. The WRC is on procedural grounds only and their criticism is that this should be on substantial grounds which is a reasonable point for the unions to make.

Juan Jose (Spain) Specific regulations for remote working systems provides some references to collective rights on the part of the employees. For example, remote workers have the right to be treated equally to those other workers within the company, employees on remote work will have the right to be compensated for the expenses generated. The law is not clear about what those expenses are but there is reference that this compensation will be in accordance with that agreed under the applicable collective bargaining agreement. In our experience, some collective bargaining agreements consider a lump sum to cover for expenses such as electricity and space metres devoted to this remote work. In addition, law states that the company must provide specific tools to employees« representatives allowing them to communicate with remote workers. Finally, remote workers have the right to participate in union elections at the company level so the company must implement the mechanisms to facilitate this.

Carl (Sweden) There are no work councils in Sweden, the reason I think is that Sweden is one of the most unionised countries in the world when it comes to collective bargaining agreements. We also have legislation that gives employees, in companies with more than 25 employees, the right to be on the board. Any sort of involvement or regulations regarding remote working that will be done by collective agreement both centrally and most likely on the local level when companies and unions negotiate. There will for sure be a strong union presence in all these issues, like in all other labour issues in Sweden, but it will not be handled by any sort of work councils, it will be handled by the unions under the umbrella of the collective bargaining agreements.

Any final thoughts or best practice for our audience on the topic of home working?

Ulf (Germany) When you are in a negotiation with the employee requesting to be able to work from home, you should draft the respective agreement in a way that it keeps your right of extraction as employer to the best effect so that you can request employees« physical presence in the company. Another aspect mentioned earlier is the question of money. You increasingly find that work councils ask for compensation for people working from home to cover their costs. In terms of compensation the German courts have decided you should not look at the office rent, which is saved, but a partial home rent which is occupied by your home place of work. Otherwise, those things are still developing and there are no strict rules, so it is very much open to negotiation in collective bargaining situations.

Carl (Sweden) Many worthy issues have been mentioned here. One point that I was thinking about is that it's much harder to change an individual employment contract than your HR guidelines. So, when it comes to teleworking it might be a good idea to refer, in at least your Swedish employment contracts which are short, to general guidelines. In other words, saying that you are allowed to work from home as long as this is in line with the general HR practices because that can be changed by the employer without having to have a new agreement with the employee. Try to avoid regulating teleworking in the individual contracts, instead of having guidelines that can be changed and much more easily.

Juan Jose (Spain) One of the lessons learned from the last months dealing with remote work, is that it is very important that the employment contact addresses the issue of the right to come back to the physical presence. Another important point is that companies implement protocols to avoid isolation and lack of engagement. From my experience, different models are increasingly attracting attention, for instance, that the employee works remotely for a number of days over the week but he still keeps an eye on the office for engagement, meeting colleagues or doing group projects. I have seen that many companies are offering remote work arrangements as part of the employer branding. Lately, not offering remove work seems to be a weak point in terms of talent retention.

Paul (Ireland) We have seen a significant war for talent and employers do need to be careful considering how they approach remote working. The Right to Request Remote Working bill will require that they have a remote working policy in place and the employees that don't have one will be liable to a fine up to 2500 euros, if enacted as it is currently drafted. Employers need to consider exactly what are they going to do, is it a hybrid model or are they going to require one to get back in the office. I do think it's a risk to employers if they do require one to come back into the office, where employees have been working remotely now for two years, they could possibly have a high employee turnover -certainly, something for employers to consider.

Thank you very much to everyone for your very interesting insight and to our audience, I hope you guys enjoyed this podcast as much as we did.

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Listen to this and other podcasts in our Innangard channel.

Read Part 1 and Part 2 of the summary transcript.