New world of work
According to a recent EY survey, more than half (54%) of employees surveyed (16.000) from around the world would consider leaving their job post-COVID-19 pandemic if they are not afforded some form of flexibility in where and when they work. The survey indicates that in average, employees would want to work between two and three days remotely after the pandemic.
Telework legislation in Europe
From a Belgian employment law point of view, Belgium makes a distinction between different types of telework:
- Structural telework (CLA n° 85) occurs where an employee is performing work, which could also have been performed in the employer's office, outside that office on a regular basis and this through use of information technology. Any regularity will suffice to qualify as structural telework, even 1 day a month. Structural telework takes place on voluntary basis, requiring consent of both the employer and the employee in a formal agreement which must determine certain conditions.
- Occasional telework (Workable and Agile Work Act) exists, where such work is performed outside the office, but only incidentally and not on a regular basis. An employee has a legal entitlement to work from home due to force majeure or personal reasons, insofar as he performs a function compatible with occasional telework.
The telework can be carried out at the home of the teleworker or at any other place chosen by him or her.
Also, as a temporary sanitary measure in the context of the COVID-19 pandemic, working from home remains compulsory today in all companies and for all staff members in Belgium, unless this is impossible due to the nature of the function or for business continuity (or for listed essential sectors and businesses). This COVID-19 telework (CLA n° 149) is distinct from the voluntary structural and occasional telework.
Telework is a specific form of home work (Title VI of the Act on Employment Contracts), with as principal difference that use is being made of information technology. As a result, a different set of legal rules apply to homeworkers, structural, occasional and COVID-19 teleworkers.
In France, Telework ("Télétravail") refers to any form of work organization in which a work normally performed at the employer's premises is performed outside of these premises using information and communication technologies. Telework is set up on a voluntary basis, except in exceptional circumstances.
An employee is considered as a teleworker when he performs telework as defined above (Art. L. 1222-9 of the Labor Code), either at the time of hiring or subsequently, on a regular or occasional basis.
Several criteria must be met to characterize telework:
- Telework must use ICTs (information and communication technologies). This criteria excludes employees who only perform manual tasks at home, who are called homeworkers ("travail à domicile");
- Telework takes place outside of the company's premises. This covers telework at the employee's home (main home and/or secondary home) but also in co-working premises;
- The work performed remotely is of the same type as the work performed within the company's premises. This criteria excludes employees whose work is by nature performed only on the field and employees who are on call at home ("astreinte").
In Germany, the term "home office" is often used colloquially. Legally, the terms "telework" and "mobile work" have established themselves as subcategories of this, which can be distinguished as follows:
Teleworking is legally defined in § 2 Abs. 7 German Workplace Regulation ("ArbStättV"); the following two conditions must be met:
- The conditions of telework must be contractually regulated between employer and employee. Here, the essential basic conditions such as working hours, duration of telework, technical equipment and facilities of the teleworking workplace are probably sufficient.
- The employer must have provided and installed the required equipment with furniture, work equipment, communication facilities, etc., i.e. according to the wording of the regulation, the entire work environment must be provided as he would set up a workroom in the company.
Mobile working generally refers to any other form of "home office" without set up screen space or a specific "teleworking agreement":
- Mobile working means, as a rule, working from any conceivable place (e.g. in the train, in a café, in a park, etc.). In this form of work, the employee decides largely autonomously where he/she performs his/her work.
'Teleworking' is not a term that is commonly used in Ireland and this type of working arrangement is more commonly referred to as 'remote working'.
There is no statutory definition of remote working in Ireland. However, the Irish Government has recently published its National Remote Working Strategy ("the Strategy") which includes a commitment to legislate for the right to request remote working. In defining 'remote working' the Strategy has adopted the definition of 'telework' from the 2002 European Framework Agreement:
"A form of organising and/or performing work, using information technology, in the context of an employment contract/ relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.”
As such, remote working (which is the most widespread term used) refers to the broad concept where work is fully or partly carried out at a place outside the default workplace including e-work, mobile work, flexible working, homeworking, etc. Whereas, the Strategy describes homeworking as "a work or office space set up in a person's home and used exclusively for business on a regular basis".
Homeworking (so called in Italy “telelavoro”) is the work carried out by an employee in a fixed location outside the company, which is usually the employee's home.
Homeworker, normally, follows the same hours established for employees who perform the same duties within the company.
In teleworking (so called in Italy “smart-working”), on the other hand, the place where the performance will be carried out by the employee is a choice of the employee, who decides the time and place of work with full autonomy, without a fixed location.
F. The United Kingdom
'Teleworking' is not a term that is commonly used in the UK and this type of working arrangement is more commonly referred to as 'remote working' or 'homeworking'.
There is no statutory definition for remote working in the UK. Remote working and homeworking are often used interchangeably.
Pursuant to article 2 of the Royal Decree Law 28/2020, teleworking is considered as “a form of work organisation or performance of work under which the work is carried out at the employee's home or at a place chosen by the employee, for all or part of the working day, on a regular basis.”
Therefore, the regulations related to teleworking do not differ between work from home or from other places and are applicable to any work performed from out of the working centre.
First of all, as a temporary sanitary measure in the context of the COVID-19 pandemic, a Ministerial Decree (still) provides an obligation to work from home which applies to all companies and for all staff members in Belgium, unless this is impossible due to the nature of the function or for business continuity (or for listed essential sectors and businesses).
If teleworking cannot be applied, staff members must be in possession of an appropriate certificate or other evidence issued by the employer that confirms the need for their presence at the workplace.
On 26 January 2021 collective labour agreement (CLA) no. 149 on recommended or compulsory teleworking on account of the coronavirus crisis was concluded in the National Labour Council. After more than ten consecutive months in which the rule on teleworking has shifted from it being “compulsory”, over “recommended” and “strongly recommended” to currently again “compulsory”, a regulatory framework has now finally been drawn up, which should provide much needed clarity for employees and employers in respect of exceptional teleworking in the context of the government’s anti-Covid measures.
The CLA provides for a particular set of rules for this type of telework, which do deviate on some points from the normal rules which apply to structural or occasional telework. It's however important to note that the CLA makes provision for a supplemental scheme, meaning existing agreements on teleworking that had been entered into before 1 January 2021 remain applicable. Some differences with structural and occasional telework will be addressed below.
Telework is encouraged by the government in the context of the Covid-19 crisis, but it was already possible to implement telework in exceptional circumstances such as pollution or a pandemic (Art. L.1222-11).
Since January 27th 2021, a new Corona Occupational Health and Safety Ordinance ("Corona Arbeitsschutzverordnung") has come into force in Germany and is valid (initially) for a limited period until March 15th 2021 (but is expected to be extended until April 30th 2021).
According to the regulation, in the case of office work or comparable activities, the employer must offer employees the opportunity to carry out these activities in their homes if there are no compelling operational reasons to the contrary.
The employer must therefore actively examine the possibility and - if possible - offer "home office".
However, the law does not specify any requirements for the Content of the "home office" agreement. There are also no mandatory form requirements, but written documentation is recommended.
Essentially, the same principles apply as for normal "home office", i.e. both a implementation as a "teleworking" and as a "mobile work" is possible.
There is currently no specific legislation in Ireland governing COVID-19 remote working. However, the Government has proposed legislation for the right to request remote work and to provide guidance to employers and employees.
Employees can currently and could always request to work remotely but the new legislation will provide a legal framework under which they can make that request and how employers must consider such requests. It is anticipated that employers may be required to objectively justify any refusal of a remote working request.
In the meantime, employers are applying existing employment legislation (which are not tailored or up-to-date) on a piecemeal basis to the remote work environment.
In Italy there was no special legislation for teleworking (“smart-working”) during the COVID-19 pandemic.
The emergency legislation has only provided for a simplified form of teleworking.
In particular, it is possible to access to teleworking without depositing the agreements, between employer and employee, provided for by ordinary legislation on this instrument (article 19 of Law no. 81/2017).
F. The United Kingdom
There is currently no specific legislation in the UK governing COVID-19 remote working. However, Advisory, Conciliation and Arbitration Services (ACAS), which is a UK executive non-departmental public body has released guidelines for homeworking in light of the COVID-19 Pandemic. The Scottish Government and the Welsh Government have also published advice on working from home.
Separately, employees with qualifying service with their employer have a statutory right (which existed prior to the pandemic) to make a flexible working request, which might include a request to work remotely. Employers are required to consider such requests reasonably, and can only refuse a request in certain circumstances (though we would note that these are very widely drawn).
Indeed, the following teleworking regulations have been published until now during the COVID 19 situation:
- The teleworking system preference was established in article 5 of the Royal Decree Law 8/2020. According to the final disposition 10 of such Royal Decree Law, all measures contained in the same would be applicable until one month after the finalization of the state of alarm.
- The State of Alarm finalized on June 21st 2020. Therefore, Royal Decree Law 8/2020 was applicable until July 21st, except for other specific articles that have been extended.
- Article 15 of Royal Decree Law 15/2020, of April 21st established that article 5 and 6 of Royal Decree Law 8/2020 would be applicable during two months after finalization of the applicability foreseen in the Royal Decree 8/2020.
- According to the aforementioned legislation, teleworking system was a preference until September 21st. No concrete regulation regarding teleworking during COVID 19 was published, but only the preference was established.
- Further legislation that has been approved after such date has not established teleworking system as a preference.
- It is true that some Autonomous Communities have issued different recommendations regarding teleworking system preference. However, these are only recommendations and not part of the applicable legislation.
Structural telework and home work requires employers and employees to enter into a written agreement, which must mention specific elements. Under CLA n° 149, the obligation of entering into an agreement on certain aspects (materials, technical support, cost reimbursement) also applies for COVID-19 teleworkers.
Occasional telework does not require a formal written agreement, but a framework can be provided in the employee handbook. Also, an employer can still refuse a request for occasional telework but must motivate this decision.
In general, teleworkers have the same rights and obligations with regard to terms and conditions of employment as those applicable when they are working at the employer’s office.
In terms of working time, a structural teleworker organises his work him- or herself and is not bound, during the telework, to normal working time limits. The statutory provisions on working time do not apply to structural teleworkers. Consequently, these teleworkers are not subject to the daily and weekly working time limits. In principle, they are not entitled to be paid overtime or compensatory leave when the daily or normal weekly working time is exceeded. Moreover, they may work on Sundays and public holidays and are not subject to the ban on night work for work performed at home. The agreement on telework must determine time slots during which the teleworker can be contacted.
An occasional teleworker, on the other hand, is not exempt from the working time limits and organises his or her within the working hours in force in the company and will have to perform the number of working hours that apply to him or her.
For COVID-19 teleworkers, CLA n° 149 explicitly provides that, in the absence of agreement, the teleworker should observe the work schedules he would have had to abide by in the company (but parties can agree differently). There should also be consultation, and if possible agreements made, concerning the periods during which it must be possible to contact the teleworker (and in what way), or during which the latter is not reachable, during the working hours in force in the company. The CLA appears to be explicitly recognising the importance of a right to disconnection – a period during which a teleworker actually cannot be reached.
The employer remains responsible for health and safety at work, also during telework. Teleworkers should be informed of the welfare policy specifically pertaining to teleworking. They must be given information and guidelines on preventive measures (based on a multidisciplinary risk analysis), such as with regard to the setting up of their (home) workstation, use of screens and the technical support available in the field of technology and IT. The risk analysis should also take account of the psychosocial and health aspects inherent in teleworking.
Telework can be implemented within the framework of an in house collective agreement or, failing that, by setting up a telework policy after consulting with the Social and Economic Committee ("CSE") or, in the absence of a collective agreement or policy, by an agreement between the employee and the employer, (Art. L. 1222-9 of Labor Code).
Teleworkers have the same rights as employees working at the company's premises. Teleworkers can meet with their managers and colleagues and participate to company events.
The legal and collective bargaining provisions relating to health and safety at work are applicable to teleworkers.
Concerning working time regulations, telework must not lead to infringement of working time regulations.
The employer sets the time slots during which the teleworker can be contacted. The employee is obliged to comply with the schedule set by the employer as to the number of days teleworked and the number of days the employee must be present in the company's premises. The way the workload is monitored is described in the collective agreement or in the telework policy. An annual interview with each teleworker is held to review the workload and working conditions.
In principle, it is advisable to conclude written agreements for all forms of home office (for "teleworking" it is mandatory, as described).
Nevertheless, it is also argued, particularly in times of the pandemic, that the employer may have the option of sending its employees to the home office for a limited period of time within the scope of the right of direction due to the special situation.
In all forms of home office, it must be ensured that the German Occupational Health and Safety Act (Arbeitsschutzgesetz) is complied with. "Teleworking" is also subject to even stricter regulations in line with the German Workplace ordinance ("ArbstättV"). In the case of "mobile work", the requirements for the duties to health protection depend on the specific arrangement, in particular on the question of what freedom of choice the employee has with regard to the place of work (i.e. exclusively from home, possibility to also work in the office, work from anywhere).
The German Working Time Act (Arbeitszeitgesetz) also applies to the home office in the same way as to the normal office. In particular, care must be taken that a maximum working time of 10 hours is not exceeded.
We generally recommend agreements with the employee to ensure data security in the home office (i.e. use of secure Wi-Fi networks, locking up work materials from third parties, password requirements, etc.).
Employers are currently applying existing employment law legislation to remote work arrangements (which, in certain circumstances, are not fit for purpose). However, many employers are introducing specific remote working policies and this is strongly recommended.
- Health and Safety – Under the Safety, Health and Welfare Act 2005, employers must provide a safe place of work for its employees. The legislation does not specifically deal with remote working or the home environment and may need to be updated. However, the Health and Safety Authority of Ireland has issued extensive guidance for employers and employees in relation to working from home including a Homeworking Risk Assessment/Checklist.
- Working Time – Existing working time legislation dates from 1997. This contains the usual rules on maximum weekly working hours and rest breaks etc. However, this legislation is general and is not specific to the home working environment. The Government has promised to introduce a Code of Practice on the Right to Disconnect. In Ireland, a Code of Practice is not "hard law" and is not the same thing as binding legislation. However, it may be submitted as evidence in proceedings and it may be difficult for employers to defend any related claims if they do not adhere to the Code of Practice.
- Terms of Employment: Under the Terms of Employment (Information) Act 1994, employers must provide employees with certain specified terms and conditions of employment in writing, including details of the employee's place of work. Employers should review and update their contracts of employment to ensure that it provides for remote working and flexibility in case of a change of place of work.
- Confidentiality/Data Protection: The same confidentiality and data protection obligations apply in a remote work context. Under GDPR, employers should assess the risk of a data breach and put adequate and appropriate organisational and technical measures in place to ensure that confidential information and personal data are kept secure and, in respect of the latter, processed in line with data protection legislation.
In teleworking, the employee is left with autonomy and flexibility in the choice of spaces, times and equipment.
There are no fixed working times to respect; the work is based on cycles and objectives. It can only be expected that the employee is available within certain hours.
The employer must provide the teleworker with information relating to health and safety (article 22 of Law no. 81/2017). The teleworker is required to cooperate in the implementation of the prevention measures prepared by the employer to deal with the risks associated with the execution of the service outside the company.
F. The United Kingdom
Employers are currently applying existing employment law legislation to remote work arrangements. Many employers also have their own homeworking policies.
- Health and Safety – Under the Health and Safety at Work etc Act 1974, employers are responsible for ensuring the health and safety of employees so far as is reasonably practicable. The legislation does not specifically deal with remote working or the home environment. However, the Management of Health and Safety and Work Regulations 1999 requires employers to carry out risk assessment of all working activities carried out by their employees and this includes homeworkers.
- Working Time – Existing working time legislation dates from 1998. This contains the usual rules on maximum weekly working hours and rest breaks etc. However, this legislation is general and is not specific to the home working environment.
- Terms of Employment: employers must provide employees with certain specified terms and conditions of employment in writing, including details of the employee's place of work. Employers should review and update their contracts of employment to ensure that it provides for remote working and flexibility in case of a change of place of work.
- Confidentiality/Data Protection: The same confidentiality and data protection obligations apply in a remote work context. Under UK GDPR and Data Protection Act 2018, employers should assess the risk of a data breach and take appropriate technical and organisational measures to ensure that confidential information and personal data are kept secure and, in respect of the latter, processed in line with data protection legislation.
According to Royal Decree 28/2020 (not applicable in the event of teleworking due to COVID 19 situations the following main conditions are established:
- It is compulsory to enter into a written agreement between the company and the employee when the services are provided from the employee's domicile, or a place chosen by the employee, in a percentage equal to or higher than 30% of their total working time in a reference period of 3 months.
- The company must provide the employee representatives (works council or employee delegates) a copy of all individual teleworking agreements. The copy must be signed by the work council and registered by the company before the public employment office within a period of ten days.
- The decision of teleworking system shall be reversible for the company and the employee.
- The individual teleworking agreements must contain the following:
- The company must list in the agreement the means, equipment and tools, to be delivered to the employee, that are necessary for teleworking.
- The agreement must list any expenses related to the teleworking system and quantify the compensation to be paid for the expenses.
- The agreement must set the working hours as well as the rules for the availability of the employee at home and also at the work place if teleworking is partial.
- The agreement must specify which is the place of work to which the employee is assigned and where, if applicable, they will carry out the work on-site.
- Teleworking may be agreed either for an indefinite period or for a fixed period. The agreement must contain the prior notice period to exercise the reversibility.
- The company will have to comply with the health and safety regulations related to the place of work of the employee.
For structural telework, a written agreement must be concluded in which arrangements must be made regarding the costs and charges related to the telework. At least the costs related to connections and communications should be covered. In the absence of a written agreement, the sanction provided for is not the granting of a specific allowance, but the right of the teleworker to carry out his work at the employer's premises or to return to the employer's premises.
In event of occasional telework, the employer and employee can agree on a possible reimbursement by the employer of the costs related to occasional telework, but there is no specific obligation to reimburse certain costs.
Also for home workers a written agreement must be concluded stating the reimbursement of costs related to home work. In the absence of such formal written agreement, the employee owes a lump sum of 10% of the salary related to the home work as a cost reimbursement to the employee (even a higher if the employee can demonstrate that his actual costs are higher).
In the context of CLA n° 149, for COVID-19 teleworkers, agreements have to be entered into on the reimbursement or payment by the employer of costs pertaining to the installation of relevant computer programmes, usage, operating and maintenance costs and depreciation charges if the employee uses his or her own personal equipment, as well as on the additional connection costs related to the telework.
It is however possible, for example if the employer already provides for another financial contribution, for the parties to agree that the teleworker does not need to be granted any additional funds or reimbursements.
The employer must compensate the employee who works entirely from home.
Except in this situation, the employer is not obliged to pay an extra compensation for telework. It is recommended to grant 10€ per month for one day of telework per week.
However, as a general principle, the employer shall cover the professional expenses associated with the employee's performance of his or her duties and cannot be exempted from this obligation.
A compensation again depends on the form of "home office" activity:
In the case of "teleworking", it is generally held that the employer must fully equip the workplace at home - from office furniture to monitors (i.E. costs for necessary furniture, work equipment, communication facilities; proportionate electricity and heating costs; share of rent payment).
The obligation to bear the costs for "mobile work", on the other hand, depends on freedom the employee has in choosing his place of work; the more freedom, the lower the employer's obligation to bear the costs.
If it is agreed that the home address is on all days - or on certain days – the contractual workplace, than trips to the office (e.g. to attend meetings) are considered business trips and must be paid by the employer. If the employee though can decide (on each day) whether he wants to work from home or from the office (typical remote working), than the employer in not obliged to reimburse the commuting expenses.
For both teleworking and mobile working, a lump-sum payment can be contractually agreed regarding compensation of costs with the employee.
There is no specific obligation to compensate for remote working or to cover additional cost incurred by employees because of working from home e.g. Wi-Fi, heating, electricity. Equally, there is no specific legal obligation on an employer to cover the cost for equipment required to work from home e.g. desk, chair, laptop, etc. However, employers are obliged under the Safety, Health and Welfare Act 2005 to generally provide a safe place of work and work system and this applies irrespective of whether the employee is working in the office or at home. Therefore, if an employee raises legitimate concerns about safety of equipment, employers are well advised to consider these carefully. It may be difficult for an employer to defend any claim arising from a failure to provide the equipment required to perform the work safely, e.g. personal injury claims. In theory, the Health and Safety Authority of Ireland could conduct investigations or even instigate prosecutions under the 2005 Act but these are very rare for homeworking situations.
In relation to tax, an employer is permitted to pay homeworking employees a daily allowance of €3.20 without deducting any taxes. If the employer does not make this payment, there are tax credits that an employee can claim where they are working from home on a full-time or part-time basis as follows:
- 10% of the cost of electricity and heat incurred (apportioned based on the number of days worked at home over the year)
- 30% of the cost of broadband incurred, apportioned based on the number of days worked at home over the year.
There is no law that requires the employer to compensate (the employee) for the costs of teleworking at home. However, this condition could be provided for by the applicable NCBA or by specific company agreements.
F. The United Kingdom
There is no legal obligation for an employer to provide the equipment necessary for homeworking or to cover any additional cost incurred by employees because of working at home. However, ACAS encourages employers to have a policy in place that outlines the type of equipment the employer will provide to facilitate homeworking.
Homeworkers may be entitled to claim a deduction against their taxable income for certain household expenses arising because they are working from home. The rules around this are relatively complex but have been relaxed for the duration of the pandemic.
As states above, Royal Decree Law 28/2020 provides the obligation to cover the expenses of the teleworking system. However, does not specify the amount. We always recommend an amount of between 25 and 30 euros per month.
This will depend on the envisaged scenario.
If the employee is habitually working in Belgium for the employer, in the context of telework (normal place of employment), Belgian employment law rules on telework will generally apply to this situation: even if a choice of laws would be in favour of for the application of foreign law to the employment contract, mandatory provisions of Belgian law (including the rules on telework) would apply.
If the employee's normal place of employment for the employer is outside Belgium, the contract would be governed by foreign law. However, even in such case, certain provisions of Belgian law may still apply on the teleworker for the telework performed in Belgium. Indeed, an employer who temporarily employs a worker in Belgium is obliged, as regards the work performed in Belgium, to comply with the working conditions, wage conditions and terms of employment laid down pursuant to:
- provisions punishable under criminal law; and
- collective labour agreements that have been declared to be generally binding further to a Royal Decree, with the exception of stipulations making provision for contributions to supplementary pension schemes.
Even more far-reaching obligations would apply should this concern a situation of temporary work in Belgium exceeding 12 months.
From a social security law point of view, assuming that the employee will perform the telework at home (in his state of residence), he would become subject to the social security legislation of that state if he works there for at least 25% (i.e. as from 5-6 days a month). However, regarding COVID-19 telework, many member states have indicated that they will not take into account periods of telehomework on their terriroty, which are performed due to COVID, to claim application of their own social security regime. Belgium has confirmed that this neutralization period applies from 13 March 2020 until 30 June 2021, and may be subject to extension.
Regarding the COVID-19 telework, its also interesting to note that, for employees normally working in Belgium (habitual place of employment), under a Belgian law employment contract and who are now in the context of the COVID-19 measures working at home abroad, in their home country, the rules of CLA n°149 would in principle also apply to their Belgian employers. However, in such scenario, it may also be the case that specific mandatory or public policy rules of the country in which the telework is actually performed would need to be abided by. Taking into account the supplemental nature of the rules in CLA n° 149, rules or policies applicable under foreign law may provide a sufficient framework for the telework. This should be assessed in each specific scenario.
Taking into account that it has been requested to declare CLA n°149 generally binding, by Royal Decree, it could also apply in event of temporary scenario's of working from home in Belgium, under a foreign law employment contract. Also in that scenario, the same assessment should however be made regarding applicable rules or policies under foreign law. The question also rises whether, in such case, the telework falls under the material scope of CLA n°149 – i.e. whether it indeed takes place in the context of the (Belgian) government's measures to combat the COVID-19 pandemic. This will likely only be the case in a very limited number of situations.
French employment law does not consider telework from an international perspective. This situation must therefore be examined according to the usual French employment, tax and Social Security rules (not analysed here).
As regards employment law rules: The fact that an employee teleworks in France under a foreign law employment agreement is fine as long as French mandatory rules are complied with.
Indeed, employers hiring or temporarily posting employees in France are subject to the legal provisions and industry wide collective agreements applicable to employees employed by companies in the same branch of activity established in France, with respect to labour legislation, concerning the following matters:
1° Individual and collective freedoms;
2° Discrimination and equal rights for men and women;
3° Maternity protection, maternity and paternity leave and childcare leave, leave for family events;
4° Conditions of availability and guarantees due to employees by companies engaged in temporary work;
5° Exercise of the right to strike;
6° Working time, compensatory rest, public vacations, paid leave;
7° Conditions of subordination to vacation and bad weather funds;
8° Minimum wage and payment of wages, including overtime bonuses, as well as fixed wage accessories;
9° Rules relating to occupational health and safety, age of admission to work, employment of children ;
10° Illicit work.
For the application of the above-mentioned principles, the decisive factor is whether the employee works mainly in Germany, i.e. also performs his home office activities here. In this case, the same principles apply to foreign employers as to domestic employers.
Foreign employers will have the same legal obligations in respect of an employee working in Ireland as an Irish based employer. The employee is entitled to rely on Irish employment law.
Foreign employers must register with tax authorities in Ireland (Revenue Commissioners) for employment related taxes. There is also a risk in some cases of creating a permanent establishment in Ireland, with wider tax consequences for the employer, if the worker is deemed an independent agent acting on behalf of the organisation. Specialist tax advice should be sought.
Foreign employers should also be mindful of their data protection obligations when processing employee personal data, particularly if they are transferring that personal data outside the European Economic Area.
Primary, the foreign employer must create in Italy a “Permanent Establishment” (it could be created as “subsidiary” or a “branch”) or alternatively a “Social Security Position” (so called “Rappresentanza Previdenziale”).
At this point, the foreign employer must follow all the rules provided for Italian employers.
Therefore, the foreign employer must enter into an agreement with the employee that governs all aspects of the teleworking relationship, to be sent through a special online platform to the Ministry of Labour.
F. The United Kingdom
Foreign employers will generally have the same legal obligations in respect of an employee working in the UK as a UK based employer. The employee is entitled to rely on UK employment law, regardless of the law stated in their employment contract.
Where the employee is liable to pay personal tax in the UK, a foreign employer will need to make payroll deductions from the employee's pay and remit taxes to HMRC. They may also become liable to make social security (National Insurance) contributions, and may need to comply with UK pension auto-enrolment requirements.
Foreign employers should also be aware that if they do not have an establishment in the UK then there is a risk that an employee's work (and revenue generation) in the UK could create a taxable presence for the foreign employer for corporation tax purposes.
Foreign employers should also consider their employees' immigration status. Employees working in the UK will need to have a right to work in the UK and may be required to obtain a visa.
Foreign employers should be mindful of their data protection obligations when processing employee personal data, particularly if they are transferring that personal data outside the European Economic Area.
If an employee is hired in Spain to work for a foreign employer on a regular basis on a teleworking system, the following steps shall be carried out:
- The foreign employer shall be registered in Spain for Social Security and tax purposes.
- The employee will be registered in the Spanish Social Security.
- The employee and the foreign employer will enter into a Spanish employment contract that includes a specific agreement regarding teleworking system and regulates all its conditions.