How strict are the rules on working from home?

According to a survey by Acerta, most Belgians who can and do work from home work one to two days a week from home. Working from home is thus well established, but that is precisely why the need for clear agreements is growing. What should you expect as an employer or employee? Do you have certain rights or duties? Sophie Vantomme, legal expert at Acerta Consult, helps us get started. ^{(source: jobat.be)}

Do you ever work from home or are you always in the office? Since the pandemic, that is a question we can ask almost any clerk. However, not every working arrangement is the same.

Definition

“First of all, you have to distinguish between working from home and teleworking,” Sophie Vantomme explains. "Working from home or remote working in the strict sense is work that an employee performs at home without being under the supervision or direct control of the employer. A job that does not require information technology, actually. Think of someone doing packing work at home." This group constitutes only a small percentage of people working from home, as IT is a must for most. ‘Teleworking is a specific form of home work, where the employee uses IT. In telework, we need to make a further distinction between occasional telework and structural telework. For the former, we have had a legal framework in place since 2017." "These are occasional times when working from home is a must due to force majeure or personal reasons. For example, you come back from holiday and discover that there has been a leak in your house, forcing you to stay home for a day for the professionals who are going to come over to seal the leak. You can then ask your employer if you can work from home that day, at least if your job allows it. Structural working from home, on the other hand, is a regular repetition of working from home. We have had a framework for that since 2005."

Mutual approval

The basic principle of that legal framework is that structural working from home is voluntary in nature. It is therefore not a right of the employee and not a duty of the employer. Sophie: “For this reason, structural telework is possible only if there is a written agreement between the employer and the employee on the telework and what it will look like in concrete terms. If it is an employee who is already employed, that agreement should take the form of an annex to the employment contract. The agreement is very important. It also means that you cannot just change anything about that agreement, you need approval from both sides for that.” The legal framework defines, in particular, what a telework agreement must contain at the minimum. Just think about the frequency of telecommuting and any further agreements about it, such as days of mandatory attendance. “And in addition, the agreement should state when the teleworker should be reachable and through what means, the location the employee chooses to telework, the reimbursement of certain costs, when the employee can call on technical support and also any rules on returning to the company location if the telework were to stop.”

Control

And then there is the amount of control an employer may exercise over his or her employees. “An employer always has the right to monitor his employees and there are also different tools for this, each with their own legal rules,” Sophie explains. "Think of a digital time tracker system. Specific procedures also exist if the employer would like to control which websites employees do or do not visit. But there are limits, because in this case, the employer's right to monitor may clash with the employee's right to privacy." "So the purposes for which such monitoring of internet use may be done are laid down by law. The monitoring should not go beyond what is necessary for the purpose and the employer should communicate the necessary information about it in advance." "If the purpose is to check employees' compliance with rules on the use of IT, if any problems are detected, employers must follow a special procedure before they are allowed to identify the employees concerned. Employees should be aware of that, by the way." The same goes for digital data on, for example, the use of your badge. "If your employer wants to see when you have been checked in, he or she should inform you in advance. After all, the usage data of an individual badge is personal data, so your employer must follow privacy rules. So there are various security mechanisms that balance your boss' right of control with the protection of your private life."

Seeking flexibility

So the fact that there are some rules and procedures does not prevent flexibility. A telework policy can include further rules and agreements on telework. Those working for a large company are more likely to have to deal with a telecommuting policy. But smaller organisations also benefit. Such a policy provides the framework for individual agreements on working from home and can leave room for flexibility. What should you do if you do want to deviate from the agreement with your employer? Sophie: "If you cannot come to work in the office due to force majeure, you have a good reason to want to work from home anyway. You can then ask your employer to allow you to telecommute occasionally. And if you want to switch telework days occasionally, first check in your telework agreement whether the days are specified or not and make further arrangements with your supervisor. If your arrangements differ from what is in the written agreement, make sure your agreement on that is in writing."

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