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Coronavirus - Working arrangements during the pandemic - Europe

  • Europe
  • Coronavirus - Workforce issues

22-04-2020

The impact of COVID-19 on working life across the world has been dramatic. Current legislation protecting workers was enacted in a very different climate and in light of very different working arrangements. Now that so much of the working population is working remotely or on different terms, we consider the impact of these new arrangements on matters such as working time, annual leave and rest periods. How do existing laws now operate to protect workers as originally intended and what flexibility can be offered?

In the EU, the European Working Time Directive 93/104/EC (the Directive) was adopted in 1993 and has become a cornerstone safety net for the protection of the health and safety of workers across Europe. In the U.K. the Directive was implemented by way of the Working Time Regulations 1998. Broadly, the Directive’s provisions ensure compliance with minimum standards on working time, annual leave and rest periods. Although implemented at a time where the employment landscape was very different to how it is today, even before COVID-19, with part-time work, remote working and arrangements outside the standard 9-to-5 work day being the exception, do the Directive’s provisions still function effectively to protect workers and what safeguards should be contemplated by employers?

COVID-19 and remote working

The effect of COVID-19 worldwide in an employment context has been to revolutionise the way in which we work. Remote working arrangements, once the less common form of working, have (temporarily at least) become the “new norm”. Where individuals can carry out their roles remotely and there is sufficient work to do, they have been encouraged or instructed to do so, with the consequence that worldwide there has been a mass migration to remote working.

How then, can employers monitor working time and rest breaks and is there an obligation to do so? The vast majority of employers will not have had thef time or resources to put in place mechanisms to monitor the working hours of such large numbers of remote workers. The primary focus of employers has been to ensure that their technology has been adequate and capabilities have been tested to ensure a viable remote-working system. Further, the domestic lockdowns in many jurisdictions have resulted in workers confined to their homes being less constrained in terms of working time, with no travel time or other restrictions infringing on the work day. Particularly for workers engaged in those industries that have seen an upturn in work as a result of COVID-19, this has resulted in significant increases in working time.

In Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE, the ECJ ruled last year that member states should set up an ‘objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’. In the absence of such a system, the ECJ considered that it would not be possible to determine the hours worked, thereby compromising the effectiveness of the Directive. Member States should therefore take the ‘measures necessary’ to comply, with discretion to determine the specific arrangement for implementing a system for recording working time.

Given the varied existing arrangements across member states, the practical impact of this ruling differed by jurisdiction, with some being compliant to a greater and lesser extent and others being open to challenge. For example, in France, the law generally requires employers to keep records for daily and weekly working time , with some exceptions. In the U.K., employers are required to maintain adequate records to show compliance with the 48-hour limit on a working week, but this does not require the recording of daily hours of work and rest periods. In circumstances where workers are “on-site” and there is visibility and control over working hours, such working arrangements may be deemed adequate and in line with the ECJ’s ruling, particularly where the pattern of working is predictable.

In the present circumstances, most employers in the E.U. are unlikely to have arrangements in place to comply with a more purposive interpretation of the Directive with regard to their remote workers. Given that it is acknowledged by the European Commission that the Directive aims to “avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings”, it is anticipated that the current exceptional circumstances will be taken into account should current practices on recording of hours be challenged. Further, it is expected and hoped that the relevant authorities and legal systems (in the U.K. this will be the Health and Safety Executive and the UK Courts and Tribunals) will show some leniency. The ECJ Deutsche Bank decision, made in calmer times, would stretch most employers’ resources to the limit in this more turbulent period if strict recording of duration of time worked each day by each worker was deemed to be required.

Some jurisdictions make a particular distinction between remote and non-remote workers for the purpose of working time requirements. For example, in Belgium, working time regulations are not applicable to remote workers and therefore such workers are expected to organise their work within the context of what is required to be completed and without any determined working schedule. In the Czech Republic, employers are permitted to agree with employees that they schedule their own working time when working remotely.

With so many individuals now working remotely, does this mean that where a jurisdiction does not make an exception for remote workers, employers must find a way to ensure that working time is effectively measured, that rest periods are being properly observed and that annual leave is being taken? In other words, how are employers now ensuring the health and safety of remote workers?

Annual leave

In the UK, the government has passed emergency legislation which has relaxed the restriction on carrying forward the four weeks’ leave to which workers are entitled by virtue of the Directive. The Working Time (Coronavirus) Amendment Regulations 2020 allow the carry forward of any of this untaken leave where it has not been reasonably practicable to take it in the leave year ‘as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)’.

This, at least, seems straightforward although there has been some doubt as to what might constitute ‘reasonably practicable’. Does this enabling of rollover meet the Directive’s health and safety objectives? 

Given the principle of avoiding the imposition of conditions that makes it impossible for workers to exercise the right to paid leave and the ECJ’s rulings that the positive effect of paid annual leave for the safety and health of the worker can in exceptional circumstances still be achieved by taking it in a future leave year, it is expected that this may be considered compliant with the Directive’s objectives, in the same way as the carry-over of holiday in cases of long-term sick and maternity leave. Nonetheless, in cases where annual leave is being delayed solely because of cost and in circumstances where the Courts across the different jurisdictions have repeatedly made clear that cost is often not an adequate defence to non-compliance with key rights, this is more questionable and will need to be considered on a case-by-case basis.

In the current circumstances where companies are urgently looking at ways of minimising expenses, some employers have been more inventive regarding annual leave costs, despite the potential risk of challenge. In some cases, employers have asked employees to consider using up their annual leave whilst being furloughed. In other cases, employers have asked senior managers to consider ‘giving up’ their entitlement to accrued annual leave (which in some cases can amount to hundreds of days) as a form of camaraderie arrangement to help pay wages. There is also evidence of employers asking employees to agree to donate/share outstanding holiday entitlement in favour of workers at home who cannot work remotely but who have no outstanding leave to cover that period. In an emergency climate such as this, it seems that the minutiae of the law are being put to one side as part of a bid for survival.

Working time and rest periods

Do the statutory relaxations of the law across different jurisdictions still protect workers; and specifically, in the EU, are the objectives of the Directive being met?

There is no definitive answer to this, since in most cases the working time and rest periods of remote workers will not be accurately measured. Some jurisdictions already have effective systems in place to measure working time from home. For example, in Japan, a system recording log-in/ out times and/ or email reports are options.

A further consideration is that working from home can be inherently stressful, particularly in circumstances where workers have young families at home with them, compounded by anxiety associated with the uncertainty of the crisis and the inherent increased difficulty of “switching off” when working from home. There may be no possibility of a ‘rest period’. Particularly for vulnerable workers, this may pose a significant risk if adequate steps are not taken to address health and safety issues.

Expectations of employers may need to be managed; on the other hand, employees may feel under pressure to perform, particularly where they fear their livelihoods might be at stake. In such a pressure cooker of conflicting factors, it is easy to deduce that the health and safety of staff might be compromised, leading to the potential of litigation further down the line.

Do we tear up the rulebook?

These are extraordinary times. Workers are being asked to work on unusual terms and are being asked to show great flexibility to ensure that they keep their jobs and that their employers’ businesses survive this crisis. It is expected that once normality is resumed, many employers will be more encouraging about remote working, having seen the benefits that such arrangements can have, or may have less justification for refusing reasonable requests to work flexibly. There has now been a huge cultural shift towards understanding the effectiveness and benefits to a business of remote working.

However, once the crisis is over, employers cannot expect the pre-COVID-19 laws and norms to be forgotten. Whilst leniency might have been exercised by authorities in various jurisdictions and local laws temporarily relaxed during the COVID-19 pandemic, employers will be expected to toe the line once life returns to normal. If employers opt to encourage greater use of remote working, they should ensure local laws are observed and take steps to ensure the health and safety of remote workers are properly protected, taking account of the newly evolved landscape.

Practical tips – some do’s and don’ts of working time during the COVID-19 crisis

  • be aware of working time record keeping obligations, including variations by jurisdiction
  • for employees working from home:
    • ensure that expectations around working hours are clearly understood by both employer and employee
    • ensure that any varied working patterns don’t infringe daily and weekly working limits, particularly where employees’ hours flex around childcare and other family members working in the home environment
    • remind employees of the importance of taking rest breaks and building regular exercise into their new daily work routines
    • establish communication plans to maintain regular contact with employees working from home, ensuring that any issues around working time can be quickly identified and addressed
    • where there is an obligation to maintain working time records for remote working, establish a plan for how this will be achieved where electronic tracking systems may not be set-up for the home environment
    • ensure that working arrangements are appropriate, including for vulnerable employees who may be disproportionately impacted by working time and working environment changes
  • for employees who continue to attend work premises, ensure those employees continue to operate within working time limits. This can be a particular risk area where quarantine and self-isolation requirements create staffing shortages, resulting in key individuals picking-up extra work
  • ensure that temporary variations to working hours are properly recorded and overtime pay obligations are understood

 

For more information, please contact one of our international team to discuss further

Global:

Diane Gilhooley, Partner and Global Head of Employment, Labour and Pensions 

Hannah Wilkins, Partner 

Elizabeth Graves, Partner 

Constanze Moorhouse, Partner 

US:

Scott McLaughlin, Partner 

Michael Woodson, Counsel 

Asia:

Jennifer Van Dale, Partner, Hong Kong 

Jack Cai, Partner, China 

Europe:

Frank Achilles, Partner, Germany 

Deborah Attali, Partner, France 

Valentina Pomares, Partner, Italy