Category: Nezařazené

Working from home represents a flexible form of dependent work, where the employee works entirely or partially from their place of residence. This type of work can have several different forms. If an employee works from home for the majority of their working hours, it is referred to as ‘homeworking’. For occasional work from home, the term ‘home office’ is commonly used in the Czech context (while ‘work from home’ is more commonly used abroad).

However, there are other alternative forms of performing dependent work where employees are not present at the employer’s workplace. These include teleworking, where the employee works not only from home but from anywhere (e.g., from an internet café). Recently, other alternative work arrangements, such as hotdesking and co-working, have been expanding in the Czech Republic.

Hotdesking involves several workers sharing one desk, including its technical equipment, which must be reserved by each employee individually through a booking system, which is similar to making a reservation for a hotel room. Co-working centres, on the other hand, provide a space for independent workers to share a common workspace, including office space, equipment, and administrative support.

According to Eurostat statistics, less than 4.6% of all employees in the EU Member States use homeworking; however in some Western and Nordic countries, twice as many work mostly from home (most in the Netherlands, 12.6%); on the contrary in the Czech Republic, it is less, around 3.3% of all employees. 8.8% of all employees in the EU work partly from home (in a home office); in Western and Nordic countries, 10-25% (most in Sweden, 24.7%); in the Czech Republic, only 4.7%.

Homeworking and other alternative ways of performing dependent off-site work can provide many advantages on one hand, but also complications on the other hand, for both employers and employees. Working from home allows for savings on both sides of the employment relationship. Employees save time by avoiding the commute time from their home to work and back, which, for some, can take two hours or even more. At the same time, employers will reduce the costs necessary to provide a workspace, including its equipment. But on the other hand, they may face higher financial and time costs for facilitating communication with employees working from home. Moreover, in specific cases, personal contact is irreplaceable.

For some employees, the lack of personal contact with other colleagues can be frustrating, as they spend most of their time alone at home and miss the sense of belonging to a work team, which is often a very important element of the work relationships. In addition, when employing outside the workplace, employers have to put more effort to ensure that their trade and business secrets, personal data and other confidential information are protected and will not fall into the hands of third parties.

On the other hand, another advantage is that homeworking or off-site working offers employees the possibility of freedom to certain extend. Employees can schedule their work according to their own preferences and needs, in case they agree on this with their employer. This can lead to further positive benefits for the employer, such as increased employee motivation, performance, and loyalty of their employees.

However, off-site working is not suitable for everyone, especially for those who lack sufficient self-discipline, as their working from home can become ineffective. The loss of the employer’s control over the employee, who cannot be supervised directly, may impact the performance of individual employees negatively. Therefore, the effectiveness of homeworking depends on the employee’s personality and the mutual trust between the employer and the employee. It should be noted that working off-site is suitable to certain job positions only.

Homeworking is mostly found in sectors of economic and business (e.g. managers, consultants, accountants, lawyers, etc.), technical fields (e.g., designers, architects, programmers, graphic designers, etc.), in trades (e.g., hairdressers and auto mechanics), and other professions utilizing home office include teachers, journalists, and artists. Among social groups, working from home is primarily searched by women on maternity or parental leave, students, and seniors.

Although, home office and other alternative ways of work in the Czech Republic are not utilized as much as in other Western countries, it cannot be ruled out that these forms of employment will become more common in the Czech Republic in the future, taking into consideration the ongoing economic crisis, when the employers are searching alternative ways to reduce their costs, and time when employees have difficulties with finding job in their living area or to find any suitable position at all.

By now, employers in particular, do not trust working from home or off-site workplace. This is probably caused by their fear of losing the control they have over employees working in the workplace. Mutual trust between the employer and the off-site employee is undoubtedly an important element for the functioning of teleworking. It can be recommended that the contractual arrangements for the employment relationship between the employer and the employee working at home should be set out in detail. A well-drafted employment contract will prevent any future doubts as to the elementary rights and obligations of both parties to the relationship.

What should such a work contract include, or rather, what should employers and employees working from home or outside the workplace be careful of? First of all, it is essential to understand that an employee can only perform work from home or outside the employer’s workplace based on an agreement with the employer, who, under no circumstances, can force the employee to do so.

According to Czech Labour Code, the place (or places) of work is a mandatory element of an employment contract. An employee can agree with the employer that their residence will be the exclusive place of work, but also a combined workplace can be arranged. This means that the employee works partly from home and partly at the workplace or at another location, such as with clients.

Another challenge lies in the question of working hours. According to the Labour Code, the distribution of working hours do not apply to employees who work remotely and for those who schedule their working hours themselves. Those employees usually set their own working hours. However, there is nothing preventing the employer from agreeing with the employee on certain restrictions on their freedom to schedule working hours. For example, the employee may be required to be available to the employer via telecommunication during specific times, to report to the workplace when needed, or be prohibited from working on certain days (such as Saturday and Sunday) due to the employer’s obligation to pay wage premiums for those days. As defined by law, in such cases, the employee will not be entitled to overtime pay, salary, or compensatory time off for overtime work, nor will they be entitled to wage compensation, compensatory time off, or a bonus for work on public holidays. However, the employer will still be obliged to pay the employee an additional bonus for any overtime, night work, and work on Saturdays and Sundays.

For this reason, it can be suitable for the employer to arrange in the employment contract that the employee will not work remotely during nights and weekends, in order not to have to pay the employee a wage supplement.

Even when working from home, the maximum working hours must be obeyed, which means the working week cannot extend 40 hours per week, except for overtime under legal conditions. Therefore, the employer can only assign an amount of work to a home-based employee that an average employee can complete within the established working hours. In general, a larger amount of work can be assigned to a home-based employee, requiring them to work overtime, at night, on Saturdays, Sundays, or public holidays. The employer is responsible for keeping records of working hours, which can be problematic for employees working off-site. The employer can manage this by instructing the employee to check in at the start and end of their workday. Alternatively, the employer can delegate the task to the employee to keep their own records and then submit them.

A major complication for the employer can be the issue of health and safety at work, including industrial injuries. The employer must fulfil their obligations regarding Occupational Safety and Health (hereinafter referred as “OSH“), even for employees working outside their facilities. This includes preventive duties, providing OSH training, ensuring occupational health care, or providing personal protective equipment. Employers must follow various obligations in cases of industrial injuries or occupational diseases, etc. Naturally, fulfilling these duties can be very challenging for employers in the case of home-based work, as the employer can only check the working conditions and environment of a home-based employee with the employee’s consent. This is because the employee’s residence is protected under the constitutional right to the inviolability of the home (Article 12 of the Charter of Fundamental Rights and Freedoms).

Therefore, it may be recommended that the employer should try to ensure the employee’s compliance with OSH by contract, i.e. the employment contract should include, for example, the specification of the time when the employee may not work; the employee’s obligation to take proper safety breaks; the right of the employer or persons authorised by the employer to enter the employee’s residence after prior notification in order to inspect the workplace or to determine the cause of an industrial injury, etc. Consideration may also be given to the establishment of a checklist as an annex to the employment contract, in which the employer specifies the conditions to be met by the workplace and the employee signs the checklist, together with a declaration that his home or other workplace meets such conditions and that he will maintain it in such condition. However, the employer shall always be obliged to pay the costs of ensuring OSH.

In relation to OSH, workplace accidents (industrial injuries) are probably the most problematic area, as it is difficult to prove whether the accident occurred during working hours and in direct connection with the performance of work tasks. Disputes arising from the complexity of proof can be partly avoided by an agreement in the employment contract on the employee’s obligation to notify the employer in advance of the working time schedule and, subsequently, by the employee’s prompt reporting of the accident. Although the employee must prove that the accident occurred outside the employer’s workplace during working hours and in the context of the performance of work tasks, the employer still has obligation to clarify the causes and circumstances of the accident. Therefore, it is appropriate to regulate questions related to work accidents within the employment contract.

To be summarised, working remotely and outside the employer’s workplace certainly holds great potential for the labour market and in the future its use may expand in the Czech Republic following the example of Western and Northern Europe, but it is always necessary to remember the pitfalls associated with it and try to prevent them.

A topic wildly discussed in society is the protection of whistleblowers, also known as whistleblowing (excluding the pandemic situation and related issue of vaccination, addressed in previous articles)

Since this topic is very extensive and spans several areas, we have decided to prepare a series of articles following this topic, that will focus on the practical impacts on both employers and employees and open a discussion on the consequences that might not be immediately apparent.

However, this series of articles will not involve general description of the implemented system of the European Parliament and Council Directive (EU) 2019/1937 of October 23, 2019, on the protection of persons who report breaches of Union law (hereinafter referred to as “Directive“) or the proposed draft of national legal act of the Czech Republic. In this series, the topic will be pointed out in practical perspective of our everyday practice, particularly in the area of labour law.

Initially it is important to state that, regardless the of the assessment of the quality of the Directive and the forthcoming implementing regulation at national level, one fact cannot be denied – they both have opened up a very important topic of the responsibility of legal entities and the related personal responsibility of representing individuals, which, in our opinion, is the greatest benefit.

We also consider it positive that, if the whistleblower protection regulation is properly conceived, it can have a positive impact on employment law or civil service relationships, as well as promote a focus on fairness and trust in society. Although the Directive has not currently been implemented by a national implementing regulation, targeted protection and compensation for damages due to inadequate (in this situation entirely absent) implementation of the Directive can be sought from the competent court. The possibility to seek compensation for damages from the State for failing to implement the Directive within the transposition period was granted to individuals by the Court of Justice of the European Union, inter alia, in the case of Francovich v. Italy (C-6/90).

A condition for asserting this claim is both a causal link between the improper implementation of the Directive and the rights established to be protected by the Directive. In the case of the Directive, this concerns the right to protect whistleblowers from negative consequences resulting from reporting unlawful conduct.

For the purposes of today’s article, we will set aside the specific defence measures currently provided by the legal system outside the scope of the Directive, as these will be covered in its subsequent parts of this series. However, we can mention some institutions settles by the Labor Code, the Civil Code, the Civil Procedure Code, as well as, for instance, the Law on the Service of Officers of the Security Forces and the Professional Soldiers Act. In practice, it is very common for some employees or members of the civil service to hesitate in reporting improper conduct against them, as asserting their rights, unfortunately, often means ‘putting a target on their own back’.

This approach by employers naturally discourages other individuals from taking similar actions.

However, the Directive allows to report unlawful conduct even in cases when the individual enforcing law is not directly affected by such a misconduct, which is significant support fot those who, for any reasons, have difficulty setting and maintaining their own boundaries and, in connection with that, have difficulties in taking charge of their own happiness (in the sense of the fundamental principles of private law, explicitly expressed in article 3 of the Civil Code).

In the context of the Directive, the reporting itself can take place either within the organization (internally) or through a notification to other entities, intended for this purpose.

There cannot be forgotten a benefit of internal reporting in situations where the unlawful conduct is already being addressed through state mechanisms (in proceeding such as administrative, tax, criminal, or other proceedings) and the whistleblower demonstrates that they reported the negative conduct (or omission) through a standard process.

In case that the whistleblower’s notification was also adequately responded to by taking necessary and reasonably expected measures, then it is also appropriate to consider liberation causes to release the liability, both for the employer and the whistleblower.

In the opposite case, the proceedings also assess whether the person under investigation (natural or legal person) knew or at least should have known and could have known about the unlawful conduct.

However, this considers not only stricto sensu illegal acts, but all acts in fraudem legis.

We fully understand the concerns of all whistleblowers about the negative consequences that may arise from their reports, not only for those listed in the Directive but especially the consequences that the whistleblower may personally experience, which cannot be mitigated by legal mechanisms. Typically, this will involve a loss of trust from colleagues or the employer, associated with negative work atmosphere, or the negative impact on friendly relationships between employees. Naturally, this raises the issue of the boundaries between the general prevention duty under Section 2900 of the Civil Code, the reporting obligation under Section 368 of the Criminal Code on one hand and the loyalty expected from employees or members of the civil service under the Labor Code on the other hand.

Considering the corresponding fundamental rights, the right to freedom of expression and the right to preserve one’s reputation, we believe that this limit cannot be defined in general and will be considered by the competent court in specific cases individually.

Reflecting the established case law of the Constitutional Court and the Supreme Court on the issue of whistleblowing, we again strongly recommend that employers focus on a precisely drafted internal regulation and require full compliance with it. If the internal regulation clearly establishes the obligation to report any unlawful conduct primarily in an internal way, the employer can maintain control over its reputation.

In addition, this way saves financial, and time costs often spent on extensive court proceedings when claiming damages for injury to reputation or spent on a lawsuit challenging, for example, the validity of immediate termination of employment relationship or notice of termination.

The above case of protection of the employer’s legitimate interests and the consequences associated with a breach of this duty, or failure to be loyal to the employer, is also covered by the Supreme Court’s judgment. In the light of its decision, it is easy to imagine a situation in which if an employee prefers to report a violation to the media instead of reporting it internally and thus causes damage to the employer (whether to property or reputation), the protection of the employee within the meaning of the Directive will not be justified.

And for this reason, we believe that the Directive should serve a priori as a prevention to maintain the necessary trust and fairness between the contracting parties.

The European legislator himself, in creating the Directive, took into account that the effectiveness of reporting systems often lacks trust (see paragraph 63 of the Directive’s preamble). Therefore, we recommend that all employers establish internal regulations with reporting mechanisms, ensure open and strong communication with their employees in this area, and incorporate these procedures into their daily practices. This is more likely to positively impact the creation and maintenance of trust and to help prevent damages to the employer’s reputation.

We believe that a well-designed reporting mechanism can positively support the motivation of individual employees or members of the civil service, and in this context, it will clarify their duty to protect the interests of the employer. This duty arises particularly from Section 301, subsection 1 of the Labor Code, Section 45 subsection 1, paragraph b), h) and i) of the Law on the Service of Officers of the Security Forces and Section 48, subsection 1, paragraph c), d) or f) of the Professional Soldiers Act.

We also perceive a high benefit in implementing internal reporting mechanisms for unlawful conduct (in addition to the widely used anti-corruption and ethical guidelines) in relation to corporate social responsibility (CSR). Companies with a responsible and ethical corporate culture attract interest from not only potential employees but from investors as well.

Ultimately, the inclusion of these systems can not only enhance market value but also increase employee loyalty and their work efficiency.

In conclusion, the Directive formalises the essential need of every employer, who should be aware that this is primarily a measure to protect their own reputation and avoid any possible criminal consequences.

Practical benefits can be seen also in strengthening position in the area of customer-supplier relations, but this is an area that would go beyond the scope of our article.

Full reading here.