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Remote working: Debating the benefits, challenges and risks
The pandemic has accelerated the adoption of remote working. It has become evident during the COVID-19 pandemic that remote working has many positive aspects, such as greater flexibility and more autonomy.
It does come, however, with a series of challenges such as organising working time, the right to disconnect, or reconciling professional and personal life, which affects gender equality greatly. Remote working has also consequences for health and safety at work and more flexibility in the way and from where the work is performed may also be complemented by digital surveillance and monitoring. Some studies also point out the possible impact on the labour demand and the risk of increasing the flexible remote workforce to cut jobs and pay.
Workers and employers seem to prefer hybrid systems, working from home and working in the office, as the best model for the future. It is necessary to find a balance in the regulation of teleworking, and there seems to be consensus that any European initiative in this area must be built through dialogue with social partners.
This lunch-time public debate shall offer a platform to inform and discuss these issues with experts from the labour law field, social partners and the European Commission.
The debate will be opened by:
- Anna Banczyk, Deputy Head of Unit, DG EMPL, European Commission
- Jean-Philippe Lhernould, Professor, University of Poitiers
- N.N., employers’ representative
- N.N., European Trade Union Confederation (ETUC)
- Organiser: Leyre Maiso, Deputy Head of Section - Private Law, ERA
Remote Working: Debating the Benefits, Challenges, and Risks
Thursday 2 September 2021, 12:30-14:00 CEST.
Context, purpose, subject, and structure/methodology of the event:
Remote working has become the norm for millions of workers across the EU and the wider world since the start of the Covid-19 pandemic. It has become evident it has many positive aspects, but it also comes with a series of challenges. This online debate offered a discussion on these challenges with experts from the labour law field, social partners and the European Commission.
An open forum was chosen under option 4. After the webinar, the report was drafted by ERA.
Number and type (general or specific public with details if possible) of participants present:
The event was attended by approximately 135 participants, including lawyers, judges, academics, researchers, in-house counsel, staff of trade unions and from human resources from 24 different EU Member States, the 4 EEA/EFTA countries as well as a few from third countries (UK, Turkey, USA).
If available, demographic information about participants (e.g. age, gender, etc.):
Approximately 65% of the participants were female, 35% male.
Main subjects discussed during the public debate:
Jean-Philippe Lhernould, professor of labour and social law at the University of Poitiers, started the discussion by identifying 4 key challenges posed by remote working:
- Rethinking the working conditions – Telework makes us rethink our traditional ideas around working conditions, which arises for instance the following questions:
- Clarifying the way to introduce telework in a company – should telework be introduced by legislative effort, or left to individual companies and organisations to choose? Is there a role for collective agreements? Should there be voluntary or compulsory telework?
- Renovating the concept of ‘working time’ - do old systems of calculating working time make sense in the telework context? Should working time be calculated based on workload or productivity rather than a strict requirement of hours worked?
- Redesigning workspaces – how should employers adapt the office environment in response to the rise of telework? Should companies require telework to be done from home, or adopt a more flexible approach including the establishment of coworking areas (in private spaces or employers’ premises)?
- Finding adequate surveillance tools - how can employers supervise employees who are working from home? How can we find the right balance between managerial control and workers’ freedom and right to privacy?
- Addressing Health & Safety risks - how can employers carry out risk assessments in the telework context? Are there risks present in the home which employers will now have to assess as part of their health & safety obligations due to the home becoming the workplace
- Deciding who should bear the costs of telework – if employees are working from home, to what extent should employers be contributing to the payment of expenses incurred on maintenance of an appropriate working environment at home (home computer, internet access, electricity, and office furniture were all raised as costs directly associated with the act of working from home, but also the employee’s rent and other living costs should be considered as potentially relevant)
- Gender inequality – telework could be ensured to integrate more women into the labour market and reduce gender-based wage inequalities, and could potentially contribute to promoting a more equitable split of family and domestic duties in the home
- Inequality between managers and other workers – as further discussed below telework invites us to rethink management structures which have traditionally been very vertical and hierarchical
- Opportunities for disabled people who may have struggled to find suitable work in the past due to accessibility barriers in traditional office setups
- Opportunities for those living in remote areas without access to the necessary transport links to find jobs
- Opportunities to anticipate retirement for senior employees, smoothing the period of transitioning out of the workplace
- Finding ways to preserve the sense of community in workplaces despite the fragmenting effect of telework,
- The challenge of making sure that employment itself is preserved and telework does not lead to a greater number of workers being treated as self-employed or freelancers when they do not wish to be. The shift to more telework must also not be allowed to result in job cuts, forced relocations, redundancies or pay cuts for workers.
- In some areas, however, he noted that the traditional work model has room for adaptation to accommodate telework and this may in fact be a welcome development: telework presents opportunities to modernise management structures and shift away from the traditionally very vertical approaches often seen in many parts of southern and eastern Europe towards much more horizontal systems.
- Telework also presents challenges for the effective work of labour unions, and workplaces and employers will need to collaborate in providing unions with the appropriate tools to ensure that they can continue to protect workers’ interests even in the light of new working styles; for example by introducing digital rules to support telework, such as an e-voting system.
Krisztina Boros, policy officer at DG EMPL in the European Commission, noted that according to survey data, around 1/5 of workers did some form of telework occasionally or regularly prior to the outbreak of Covid-19. However, the pandemic massively accelerated this trend, increasing the rate of remote workers to over a third. This change was more pronounced in some countries than others (for example in France and Portugal). According to a recent estimate, approximately 37% of all EU jobs are capable of being done by telework.
She then gave an overview of the current EU legal framework which addresses issues connected to remote working:
- The Framework Directive on Occupational Safety and Health creates an obligation for employers to take the measures necessary for the protection of workers’ safety and health at work.
- The Working Time Directive sets minimum daily and weekly rest periods and a minimum period of paid annual leave, and limits weekly working time and the length of night work.
- The Directive on Transparent and Predictable Working Conditions will give workers without a predictable working pattern (e.g. on-demand or zero-hours workers) the right to know in advance when work will take place (due to be transposed by August 2022).
- The Directive on Work-Life Balance for Parents and Carers will facilitate the reconciliation of work and family life, providing them with rights related to suitable leaves and flexible working arrangements (due to be transposed by August 2022).
- The European Pillar of Social Rights Action Plan (adopted by the Commission on 4 March 2021) acknowledges the importance of remote and digital working in the modern world and mentions the need to analyse the challenges it poses. It also underlines the role to be played by social dialogue and social partners in developments moving forwards and commits the Commission to examine existing practices and facilitate discussions to identify best practices.
- Social Partners’ Framework Agreement on Telework (2002)
- Social Partners’ Framework Agreement on Digitalisation (2020)
Additionally, the framework of the European Occupational Safety and Health Strategy 2021-27 specifically mentions new working patterns and increased online and mobile work as presenting new risks which occupational health and safety regulations must address.
There has also been the European Parliament resolution on the right to disconnect, which calls on the Commission to put forward a proposal for a Union directive on minimum standards and conditions on the right to disconnect, and to present a legislative framework establishing minimum requirements for telework across the Union. The Resolution highlights the central role of social partners in these developments moving forward and calls for further research in this area. As well as the right to disconnect, this Resolution flags up many other challenges to be addressed (including many of those highlighted by Professor Lhernould). The Commission responded to the Resolution on 25 March.
Ms Boros also drew attention to the Council Conclusions on telework, which highlight the challenges and opportunities which telework may bring and also call on the Commission to carry out further research in this area. Additionally, they call on Member States to implement national strategies and amend existing policies as needed to respond to the challenges of telework, and invite social partners to consider the impact of telework on workers and raise awareness of the importance of ensuring that working time regulations cover telework. Ms Boros also noted that another set of Council Conclusions addresses gender equality in the context of telework and considers how telework could be used to promote equality and integration of more female workers into the labour market.
Finally, Ms Boros presented a provisional timeline of planned Commission actions, projecting the development of work in this area over the next two years:
|14 June 2021||Council Conclusions on telework|
|June 2021||OSH Strategic Framework for 2021-2027|
|Early 2022||High-Level Conference on telework and the right to disconnect (tbc)|
|Q1 - Q4 2022||Evidence gathering on the context and implications of remote work beyond COVID-19 pandemic|
|2022||Technical and political exchanges on remote work with Member States, Social Partners and EU institutions|
|2022||Implementation report of the Working Time Directive|
|2023||Potential launch of social partners' consultation under Article 154 TFEU|
Esther Lynch, Deputy General Secretary of ETUC (European Trade Union Confederation), highlighted the following areas which have been flagged up by the trade union movement as needing to be addressed going forward:
- We need to be clear on definitions – what do we mean by ‘telework’ and ‘remote work’? All work not on the employers’ premises? Work that is regularly done from home? Work that can be done from anywhere in the country or anywhere in the world? The first definition is how people in trade unions are thinking about it, but it will be important and interesting to know what definition Member States and the EU are using, especially because of the potential implications of telework in areas such as tax and social security.
- ETUC’s position is that the introduction of telework has to come about as a result of a proper discussion with the employee and it can’t just be imposed by the employer unilaterally (except in the exceptional circumstance of the sudden outbreak of a pandemic).
- There has to be a payment to the worker to cover the costs of the equipment required for telework (desk setup, WiFi, computer, insurance etc).
- There needs to be equal pay and rights for teleworkers as are afforded to in-person workers in comparable jobs – we need to be careful that we don’t end up with the same situation as with the initial popularisation of part-time working, which led to unequal treatment that required a Directive to set things right. Social partners agreed on this already in 2002 (Framework Agreement on Telework). Telework wasn’t as prominent then. This longstanding industry agreement now needs to be implemented at EU level.
- Remote work may also create difficulties for new workers in getting enough face time with their bosses, which can be important for moving up the company ladder.
- There have been some really horrifying reports of employer surveillance of workers emerging from the widespread shift to telework during the pandemic (e.g.: employers turning on and controlling surveillance devices remotely, managers feeling entitled to turn up at workers’ homes, etc.). There is a real and pressing need for guarantees to protect workers against invasive surveillance, maintain privacy in the home, and ensure that remote management mechanisms can never be used for harassment.
- We need to rethink workplace health and safety rules so that they can be properly applied when the home is the workplace. There may be dangers which workers face in the home which employers should now be required to consider and protect them from – one example is the threat of domestic violence. Workplace safety also needs to include an awareness of the psychological risks of telework and new technology, and we must be aware that just because a technology is new or designed to make things easier, that doesn’t mean it will work well or be in the best interests of the workers.
Rebekah Smith, Deputy Director in the Social Affairs department of BusinessEurope, addressed the following relevant issues in her intervention:
- She agreed with Ms Lynch that clear and consistent use of terminology is very important – terms like ‘home working’, ‘teleworking’, and ‘remote working’ are all used in different ways, and this is especially the case in different countries and across different languages.
- It was stressed that remote working isn’t a new thing – it did already exist before the pandemic, just not in such scale – and therefore there are already some rules in place, for example the 2002 social partners Framework Agreement on Telework. Additionally, it was noted that the forced shift to telework which came about as a result of the pandemic is not the normal way of doing telework, and therefore there are some concerns which have been raised during the pandemic which are specific to the pandemic context rather than inherent in telework itself – for example, normally telework is introduced by agreement rather than forced by the government or the employer, and additionally parents who are working remotely don’t usually also have to juggle working with childcare and home-schooling.
- It is widely expected that even post-Covid, more people will request to work from home, which means that managers are going to have to find ways to oversee their employees remotely and provide them with the appropriate equipment for their work. This will be most challenging for the organisations for which telework is a completely new development, whereas those who already had some remote working systems in place are somewhat ahead of the game.
- The shift to more telework is likely to cause particular difficulties for new starters who join a company but are working remotely, as they are less likely to feel part of the working community in their organisation. Another important area to focus on is the maintenance of work-life balance and keeping a proper division between work life and private life, as telework can cause these lines to be blurred. Worker isolation is also a concern because of the lack of face-to-face contact with colleagues.
- Going forward, social partner organisations emphasise the importance of taking a collaborative approach to dealing with this, working with employers to identify concerns and the best solutions.
- The potential of telework to be used as a vehicle for addressing inequality will heavily depend on whether organisations have the right infrastructure, for example to support disabled employees working from home.
- Finally, in general, the success of remote working systems will be largely determined by the existence of a climate of trust in an organisation between managers and employees.
Main ideas suggested by participants during the workshops and the shared or debated narratives and arguments that led to them:
Several participants raised concerns about inequality facing cross-border workers who are limited to spending only 25% of their working time at home because they will lose their cross-border status if more than this amount of time is spent outside the employer’s workplace.
Ms Boros told participants that the implications of telework for cross-border workers have been discussed already at the Commission, as well as in discussions with Member States and large companies which are particularly affected by this issue. She noted that though most countries have neutralised the 25% rule until at least December 2021, it will have important ramifications for tax and social security when back in place.
Professor Lhernould also commented on this issue, stating that while EU social security coordination regulations are in the process of being redrafted, this process started prior to the pandemic and therefore telework is not really on the agenda.
One participant did note that in Germany the social security authorities have decided to equate temporary international remote work with postings according to the definition provided in Arts 12 and 13 of EU Regulation 883/2004. Prof Lhernould warned however that not all cross-border work situations satisfy the criteria for this regulation to apply.
Office space & "hotdesking"
It was asked whether the possibility of shrinking office spaces would incentivise employers to ask for more telework and less physical presence.
Ms Smith stressed that she does not see a ‘tendency’ or ‘trend’ towards reduction of office space, as the position varies widely across countries, job types, and employers; anecdotally, however, she has seen that in some cases companies have been taking some measures to cut costs and reduce their environmental impact by shrinking down office space. The most common approach in her experience is the implementation of hotdesking, a hybrid system where employees sometimes work from home and don’t have a set desk when they do come into the office.
Professor Lhernould commented that hotdesking approaches can often lead to feelings of disorientation in employees, especially those who have been used to having their own office or established workspace in the past and are suddenly expected to switch to a new system. This could potentially have negative psychological impacts.
Ms Lynch stated that she would personally advise employers to be very cautious about introducing hotdesking situations which result in people competing for desks when they come into the office, due to the possibility that this could develop into bullying or harassment which would most negatively impact those who are already vulnerable in the workplace for various reasons. Also, she would advise companies to be wary of the idea that having everyone working from home will cut costs – while people may have been willing to go the extra mile in working flexible or longer hours while at home and in covering their own working costs during the early days of Covid, the pandemic led to a massive and previously unforeseen level of cooperation between people which employers cannot and should not rely upon as their model going forward. Not only are people unlikely to be willing to make these accommodations outside of the exigencies of the pandemic situation, but they also should not be expected to.
Ms Smith noted that hotdesking has been around for decades, but it varies across companies whether employers introduce it by agreement with employees or whether it is imposed unilaterally. It is the unilateral approach that is more likely to lead to problems, because it will be detrimental to the establishment of a climate of trust in the organisation. Additionally, she noted that we are not only going to see employers pushing for people to work from home, but also more requests from workers to work from home, so many employers will want to downsize office space because they agree with their workers that it is no longer needed.
Work-life balance and gender inequality
Participants commented on the risk of remote working becoming a female form of work, which would perpetuate gender roles in the home and ensure that the burden of unpaid domestic labour continues to fall primarily on women (similarly to part-time work). There were concerns about women being ‘relegated’ to working from home and about the possibility of people taking the view that since women could work from home, they could also look after their children at the same time.
Ms Lynch emphasised first of all that shifting to telework is not a replacement for getting quality childcare. Governments still need to invest in childcare as a labour sector and ensure both that childcare facilities are still reasonably available to working parents and that childcare work is seen as a viable career. Additionally, she mentioned that during the Covid crisis studies have shown that women workers feel less satisfied with the work they have been delivering whilst working from home (for example, one study showed that male university professors have tended to produce more papers during the pandemic, whereas female university professors have delivered fewer). Ms Lynch said that she is personally quite concerned about the possibility of women being hidden away in the home again, and stressed that the importance for career advancement of women being physically present in the workplace and taking up space should not be underestimated.
Ms Smith noted that it is also not fair on employers and organisations if employees are teleworking in order to make up for a lack of childcare. Flexible working, for example where employees can take a break in the middle of the day for domestic or family duties and then do more work in the evening, can be a good thing; however, a situation where employees are trying to work whilst also doing domestic labour or looking after kids will not be helpful to anyone. Her organisation thinks the EU could be doing more to be tackling the unequal spread of domestic labour, though attitudes obviously vary across different states and cultures.
Ms Boros drew attention to the set of Council Conclusions which specifically address gender inequalities and telework, considering the different challenges and burdens which can negatively impact women in telework. The Conclusions call on the Commission to look into the impact of telework on female workers and also call on member states to implement quality childcare systems and long-term care to support workers. Additionally, they call for more research on the opportunities which remote work can bring, for example how it can help to integrate disadvantaged workers more into the labour market.
Occupational health and safety
Participants raised concerns about the application of workplace health and safety regulations to telework. For instance, the fact that employers allow employees to work from home but the costs are being born by the workers. In addition, it was noted that there is an increasing tendency to view remote employees as freelance or self-employed contractors who are being given specific tasks and are responsible for their own costs.
Ms Smith stressed that not all health and safety issues in the home can be managed by the employer because there are some things that are just clearly out of the employer’s control (e.g. poor ventilation or the risk of the employee falling down the stairs). She also noted that the application of occupational health and safety to remote working is further complicated by situations where people are working remotely but not from home, for example from a train or plane. Ms Lynch then stressed that the situation of workers travelling for work is not a new development and employers are absolutely responsible for employees’ health and safety in these situations, because they choose where to send them and what tasks they will be doing.
The need to legislate and the EP proposal on the right to disconnect
Ms Smith argued that regulating telework is different to the regulation of the ‘right to disconnect’. The right to disconnect is not exclusive to telework, but rather a feature of the digitalisation of modern working. She said that from her perspective, a social dialogue is the right approach to regulating telework, not legislation. The social partners’ Framework Agreement on Digitalisation is just being finalised and the social partners want time and space to implement that. BusinessEurope feels that this issue is better dealt with by social partners at the company level, because then systems can be individually tailored by agreement between those affected; in contrast, a general directive would be a ‘blunt instrument’. She argued that the core of any problems arising in this area will be company-specific, for example resulting from the company culture and the attitudes of colleagues towards disconnection. Ms Smith thought that the Working Time Directive is already sufficient in terms of legislative establishment of a general right to disconnect – the work still to be done needs a different approach.
Ms Lynch stated that any time that is not at the free disposal of the worker is working time, and therefore agreed that there is already a right to disconnect inherent in the EU working time Directive. However, even though employers cannot legally require or expect employees to keep the phones on constantly and always be available to answer emails, workers often do it anyway. This informal practice has an impact on wider working culture. Therefore, Ms Lynch argued that there is a need for legislation in order to enforce the right to disconnect properly, making very clear that the onus is on employers to make sure that employees know their rights and don’t feel pressured into never disconnecting, and that employers don’t operate in a way that means that not disconnecting is rewarded, for example if those who respond quickly to emails on evenings and weekends are the ones getting promoted.
Finally, Ms Lynch emphasised that while she completely agrees with Ms Smith on the importance of negotiations between workers and employers, and the role of the social partners, she believes that some employers are simply not going to stop exploiting their workers unless they are forced to by law. Although there is a role for voluntary and autonomous agreements, they unfortunately cannot cover all situations.
Ms Boros stated that the Commission also agrees on the importance of collective agreements and the work of social partners, and any future initiative will rely on the Commission being able to gather evidence and information from as many parties and stakeholders as possible.General atmosphere and expected follow-up:
The discussion and exchange of ideas were very constructive and fruitful among experts and participants.
As already indicated above, the European Commission has a provisional timeline of planned actions in this area. It is foreseen that the social partners consultation could be launched in 2023.
ERA will monitor the developments in this area and the assess the need to offer further trainings or debates among legal practitioners in Europe.
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