Since the Government submitted the Telework Bill to the Parliament on 23 November 2021, there has been a public debate on the interpretation of several of its provisions. The law, which has been adopted in the meantime, answers many questions, but some remain open. However, there will be time to clarify the text, as the legislation will only enter into force upon the end of the state of emergency, which was last extended by the Government until 31 May 2022.
Amendments to the Labour Code
The new legislation still considers the agreement between the parties on telework as the main rule, but the legislator has repaid its debt on clarifying the concept. The new definition of telework states that the employee works part or all of the working time at a place separate from the employer’s premises. This definition no longer restricts telework to activities carried out by means of a computer and clarifies that the agreement may cover all or part of the working time.
According to the law, unless otherwise agreed by the parties, a teleworking employment relationship will be established under the following conditions:
- the employer’s right to give instructions covers the definition of the tasks to be performed by the employee,
- the employer exercises his right of control remotely by means of a computer device,
- the employee works at the employer’s premises for no more than one third of the working days in the year in question, and
- the employer ensures that the employee has access to the workplace and can communicate with other employees.
An essential regulatory element is that the law simplifies and clarifies the rules on the employer’s power of control. The new rule maintains that the exercise of the right of inspection must not impose a disproportionate burden on the employee or on any other person using the telework premises.
However, the law omits the provision on the frequency of inspections, according to which, unless otherwise agreed, the employer determines the method of inspection and, in the case of inspections on the premises where the work is carried out, the shortest period between the notification and the commencement of the inspection. In our view, the regulation is questionable on this point.
Indeed, the wording of the new rule may suggest that the employer no longer has to inform the employee of the details of the inspection in advance. Such inpsection may be carried out at short intervals and even without prior notification provided that the control does not impose a disproportionate burden on the employee or other people at the premises. However, the spirit of the legislation is such that the obligation of cooperation between the parties comes to the fore and the obligation to provide information under the existing legislation should be observed.
The law retains the previous shortcoming of the legislation, which only provides for a prohibition of disproportionate disturbance in relation to immovable property. The essence of the teleworking legislation is that the work is carried out at a place which is not under the control of the employer and is independent of him. However, this place need not necessarily be the employee’s home, but may also be any legally occupied immovable property or vehicle (boat, plane, train) not considered as immovable property.
If the place of work is not an immovable property, under current law and the plain meaning of the wording of the legislation, the prohibition of disproportionate disturbance does not apply. Nevertheless, it follows from the spirit of the legislation that the concept of immovable property must be interpreted broadly in these cases, since this is consistent with the purpose of the legislation. However, it is likely to be a matter for case-law to work out the precise interpretation.
The law still does not impose any compulsory overhead contributions on employers, neither does it define any amount nor any type of contribution, although these costs are incurred by the employee in almost all teleworking relationships. The legislation seeks to resolve this by mutual agreement between the parties, but the employer’s dominant position may make the employee’s claim for reimbursement unlikely to be enforced.
Amendments to the law on occupational safety and health
The legislator now clarifies that the employee may be obliged to provide work equipment by agreement of the parties, but the employer must continue to assess the health and safety risks of the equipment, so the employer remains responsible for the consequences of any shortcomings, although the employee will be responsible for keeping the equipment in a safe condition.
When teleworking is performed by means of a computer:
- the employer must inform the employee of the rules for safe working conditions that do not endanger health and safety,
- the worker chooses the place of work subject to the working conditions referred to in the previous point,
- the employer may, unless otherwise agreed, monitor compliance with the health and safety at work rules remotely by means of a computer device.
The law specifically provides that the parties must agree on the place of work if the work is not carried out by means of a computer, in which case the employer is obliged to ensure that the place of work is suitable from the point of view of employment protection. A shortcoming of the legislation is that it does not clearly make the employer responsible for the prior control of the working conditions in the case of work carried out with a computer device, nor for the failure to control other working conditions.
The Hungarian home office regulation seems to be moving in the right direction with the new law and will provide effective help in many employment relationships, but as with any new legal institutions, the amended teleworking rules also carry the risk of immature case law. In order to avoid future pitfalls, it is worth examining the new rules from the basis of general labour law principles and transposing them into practice accordingly.