The conventional routine of attending our place of work to deliver our day's work was, until a few months ago, the most common and obvious approach. Teleworking was not the typical work practice and definitely not an arrangement that a conservative employer would have dreamt of accepting. With the COVID-19 outbreak, teleworking suddenly became a necessity.
Employers had to face a reality that required them to accept teleworking, albeit with a sense of hesitance and skepticism. However, a couple of weeks down the line, employers began to realise that teleworking could indeed be a success story. The technology is out there, and has been out there for years. Applications such as Zoom, Microsoft Teams and Skype made teleworking convenient for both parties in an employment relationship (the employer and the employee) and this abnormality soon became an accepted normality.
Commuting time decreased, traffic-induced stress was no longer an issue, employees had a degree of comfort and flexibility and productivity, henceforth, increased. This came with a noticeable reduction in operational costs for the employer, particularly in utility bills and the prospect of cost-savings on office leases. Needless to say, this heavily depended on the type of work and service offered by the company and such a scenario does not necessarily apply for certain jobs, particularly manual labour. However, where certain employers found teleworking to be a harsh reality to accept, it is now being accepted as a possible permanent working arrangement. Multi-national companies, such as Twitter, declared that remote working might be allowed permanently for certain roles, and other companies are now following suit.
But what legal implications does telework imply? Is it regulated at law?
In view of the likely emergence of this working arrangement, it is important that employers and employees are aware of a number of principles which apply. It is recommended that a teleworking arrangement is made in writing, whether as a condition of employment in an employment contract or through a separate agreement entered into in the course of employment.
Such an agreement may be as detailed or general as the parties wish, but any conditions included therein shall not be less favourable than those laid down in the law. Therefore, whilst both parties to an employment relationship are free to regulate such arrangement as they wish, where a condition is less favourable than that stated in the law, the law prevails. In fact, the law provides a non-exhaustive list of provisions which a telework agreement must include. Typically, this includes the telework place, the obligations that the employee is bound to follow at the telework place, the costs for setting up a telework place, the work schedule, the means of accessibility and communication, reporting and monitoring practices, the installation and maintenance of work equipment and various other contractual provisions that the parties may enter into further to such arrangement.
An important consideration that both parties need to consider for a telework arrangement is the data protection and confidentiality obligations. Data protection and confidentiality obligations still apply, and working from home does not imply that work documents are to be exposed or left accessible to members of the same household. Employers are to ensure that they have in place appropriate data protection policies and effective security tools for the lawful processing of personal data. Employees, on the other hand, are obliged to implement such measures and adhere to their confidentiality obligations entered into through their employment agreement.
Teleworking can be a success story as long as the employer and the employee are willing to make it work. Implementation of adequate safeguards, the adoption of appropriate policies and a teleworking agreement that safeguards the interests of both parties can be the basis for such an arrangement to stay with us for the long haul.
Dr. Christopher Vella
Commercial Law - Civil Law
This commentary should not be regarded as legal advice, If you are facing legal issues affecting your job or your employees, kindly contact us so we can assist.