The recent labor law (: law 4808/2021), reformed -among other things- the legal status of telework. In a previous article, we already mentioned issues related to the teleworking agreement and its terms. Concluding the basic overview of the issues that concern it, we will now attempt an approach to the issues related to employee protection as well as health and safety issues. Also, the extremely important (and interesting on many levels) right to disconnection.
Maintaining the type of employment relationship
The legislation on teleworking focuses, in particular, on the (multifaceted) protection of the (teleworking) employee.
The (teleworking) employee can be employed under a contract of employment (full: full-time or part-time). The teleworking agreement does not affect or change the employment status and employment contract of the already employed (teleworking) employee. It simply changes the way the job is done.
Additionally: Teleworking can be provided in full-time, part-time or rotational employment, solely or in combination with employment in the employer’s facilities (art. 67 §6).
Prohibition of discrimination between employees and teleworkers
Any discrimination between employees and teleworkers (§7) is not tolerated. The business is obliged to treat them equally – with the (self-evident) reservation of differences due to the nature of teleworking.
Teleworkers are recognized with the same rights and obligations as the (comparable) employees employed on the premises of the enterprise or holding, in particular in relation to: (a) workload, (b) evaluation criteria and procedures, (c) rewards, (d) access to information concerning the enterprise, (e) their training and professional development, (f) membership in unions, (g) their trade union activity and (h) their unimpeded and confidential communication with the trade union representatives.
Protection of personal data
The monitoring of the teleworker’s performance by their employer must take place in a way that respects the privacy of the former. Also, it must be in compliance with the protection of personal data (§8 a΄).
Particularly important (and on a practical level) is the explicit prohibition of the use of a camera to monitor the performance of the employee (§8 a΄). It is of course easy to understand that in cases where the use of a camera is allowed (inside: above the store cash register or in the context of the examination process for obtaining a certification, etc.) one could hardly imagine how the evaluation of the employee by their employer would not factor in (albeit implicitly) the recording of the relevant cameras…
Protection of the health and safety
The protection of the health and safety of teleworkers is a very important, complex and, practically, thorny issue.
The teleworker usually provides their work from home (potentially from other places as well, eg telecentres). However, the actual fact of providing work from a place other than the business’s premises deprives, in practice, the employer of the possibility of controlling that space.
This finding brings, in a way, the teleworking space to be under the term “workplace”. This is because the place of work is (: art. 3 §1 e’ law 3850/2010) every place “… where the employees are or go to because of their work and which is under the control of the employer”. A counter-argument to this position is, inter alia, the provision of clause 8 of the Framework Agreement on Teleworking. The latter explicitly provides for the possibility of the employer, employees’ representatives and the competent authorities to have access to the telework site, in order to be able to verify the correct application of the health and safety provisions. Clearly, after consultation with the employee.
The fact of the impossibility of real control of the teleworking space seems to have been taken into account, to a certain extent, by the legislator.
The employer, on the one hand, has the obligation (: art. 9) to (specifically) inform the teleworker about the business’s policy regarding health and safety at work. The relevant policy should include, in particular, the specifications of the telework site, the rules for the use of visual displays, the breaks, the organizational and technical means required to ensure the right to disconnection, and any other necessary elements.
The teleworker, on the other hand, is obliged to apply the legislation for health and safety at work. They obliged (!), at the same time, not to exceed their working hours.
Given, in fact, the specific practical difficulties with which the employer is faced, the legislator introduces a presumption of compliance with the above obligations. During the provision of teleworking, it is presumed (article 67 §9 law 4548/2018) that “… the teleworking space meets the … specifications and that the teleworker complies with the rules on hygiene and safety”.
The right to disconnect
For the first time in the national legal order, we see provisions for the identification and securing of the right to disconnection (: §10 article 67 of law 4808/2021).
This particular right has already occupied us in our previous article. We have pointed out, since then, that this is a right reserved for teleworkers. We noted, however, its importance in those cases where the employee, given the technological development, may be employed after the end of their work (eg through answering phone calls and e-mails). Especially in cases of readiness to provide work. The above cases do not appear to justify (at least sufficiently) the differentiation. They also do not seem to justify the non-reservation of the right to disconnection in these cases as well, as is the case for employees teleworking.
The right to disconnection consists (: §10) of the possibility / right of the teleworker «… to abstain completely from the provision of their work and in particular, to not communicate digitally and to not answer phone calls, emails or any form of overtime communication during their legal leave”.
The specific, absolute, wording about banning any communication raises concerns, as it may lead to unfair outcomes for the business. Especially when emergencies or incidents arise that constitute force majeure (or are on the verge of constituting force majeure), and they make necessary the provision of telework – in excess of the schedule, of course. Based on the specific data, the teleological contraction of the specific regulation is deemed necessary. At the base, of course, of good faith.
It must, of course, be accepted that the right to disconnection covers only communications which constitute provision work. This means that arrangements between the employer and the employee on the terms of employment (eg shift change) do not violate the right to disconnection. Therefore, it would be reasonable to consider that the employee is not entitled to refuse such communications.
It is further provided (: §10) that, in order to ensure the exercise of the right of disconnection, “any discrimination against a teleworker is prohibited, because…”, precisely, they exercised it. A special regulation (art. 66 §1 g.j.d.) explicitly provides for the invalidity of a possible termination of the employment contract of a teleworker due to the exercise of the right to disconnection (as we have pointed out in a relevant article).
Ensuring the teleworker’s right to disconnect requires a number of technical and organizational means. The specific means are, according to the law (art. 67-10), a mandatory condition of the telework contract and are agreed between the employer and the employees’ representatives. But such an agreement is not, in the end, necessary. When missing, the specific means are determined by the employer who then discloses them to all employees.
A Presidential Decree is expected to be issued to determine, inter alia, these means (: §12-and immediately thereafter). However, from today, an interesting facilitation emerges: The disconnection of the employee can easily be achieved by the action of the latter or, more precisely, by their failure to communicate in any way (by telephone or digitally). Such an omission does not require (nor is it served) by technical or organizational means. The provision of such instruments may relate, in particular, to the accurate recording of working time, in which case their role becomes basically precautionary.
The enabling provision
As we mentioned immediately above, the issuance of a Presidential Decree is expected (: §12) which will regulate and specify particularly important issues related to the provision of telework. The issuance of this PD will take place after a proposal of the Minister of Labor and Social Affairs but also after the opinion of the Authority for Ensuring the Confidentiality of Communications and the Authority for the Protection of Personal Data.
Its subject:
(a) the specific rules for the health and safety of telework;
(b) the minimum technical and organizational means to ensure the exercise of the right to disconnection;
(c) the declaration of teleworking hours at the ERGANI Information System,
(d) the inspection process by the Labor Inspectorate. In particular, its access to business and employee metadata and communication data via private or public telephone or internet networks and digital data transmission, which is necessary to monitor compliance with working hours. And,
(e) any other details related to the application of article 67 of law 4808/2021.
However, the issuance of this decree is (also) pending.
We also mentioned in the previous article of the series (related to teleworking) the introduction of teleworking into daily lives – both ours and businesses’. As is usually the case, the legislator came afterwards to cover the needs that life creates and the gaps that we already experience.
The point, however, is that in this case (also) the regulation comes not only late but also incomplete.
Several months after the enactment of the (indeed) important labor law (: Law 4808/21), its basic parameters are missing. In fact, as far as telework is concerned, the absolutely necessary parameters are missing: a Ministerial Order and a Presidential Decree, which will clarify the (really blurry) landscape and will assist, to the absolutely necessary degree, both the companies and the (teleworking) employees.
We look forward not only to their as soon as possible issuance, but also to their limitation, within logic.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 5th, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.