Yet another update on telework!

Telework is everywhere at the moment.

Only a few days ago, we informed you of the obligation to telework during this lockdown, except when an employee’s role or the continuity of business operations does not allow for teleworking. This obligation also applies for essential or vital companies. If the presence of a worker is needed, then the employer must provide him/her with a certificate or other supporting document confirming this fact.

Another important development has been the Supreme Court’s recent judgment of 5 October 2020 concerning structural teleworking. The Court ruled that when an employer and an employee had not entered into a written agreement, in accordance with Article 6 of the CBA n° 85, then that situation did not necessarily rule out structural telework. Consequently, even without such an agreement, the employee qualified as a teleworker and was not  entitled to the cost allowance for ‘homeworkers’ equal to 10% of the employee’s salary.

Teleworking is compulsory, also in vital companies, unless the employee’s role or business continuity does not allow for teleworking

In our latest newsflash, we informed you that teleworking is compulsory during the lockdown period, except if the employee’s role or the continuity of business operations, activities and the provision of services does not allow for telework.

There has been some confusion as to whether or not this rule also applies to the employees of essential or vital companies, listed in an annex to the Ministerial Decree of 1 November 2020.

In our view, this is the case as the Ministerial Decree explicitly stipulates that telework is compulsory in all companies, and thus includes any vital companies. This has now been confirmed on the government’s coronavirus information website.

However, it seems to us that it might be easier for essential companies than for non-essential companies to demonstrate that the continuity of business or activities requires the presence of certain employees.

If an employee is covered by one of the exceptions, then the employer must provide him/her with a certificate or other supporting document stating that his/her presence in the workplace is needed.

On the basis of the current legal texts, there is no official template document that should be used in this respect. Any written document supporting the need for the employee’s workplace presence will do. As the text of the Ministerial Decree stipulates that the employer must ‘confirm’ that the employee is needed in the workplace, the employer is in our view not obliged to explain this decision in the written document. 

If work is organised at the company premises, then such work must comply with the rules on social distancing and the Ministry of Employment’s ‘generic guide’ and sector guides.

For essential or vital companies however, the rules on social distancing must only be respected ‘as far as possible’.

The Supreme Court’s new judgment on structural telework

The facts

For structural telework, a written agreement must be entered into between the employer and the employee that includes a number of mandatory provisions that are listed in Article 6 of the CBA n° 85.

In the case presented to the court, the employer and the employee did not enter into such an agreement. Consequently, the employee claimed that she could not be regarded as a teleworker and was thus entitled to the cost allowance for ‘homeworkers’, which was equal to 10% of her salary.

Indeed, Article 119.6 of the Employment Contracts Act provides that in the absence of a written agreement regarding the reimbursement of costs related to ‘homework’, the homeworker will be entitled to an allowance equal to 10% of his/her salary. However, this provision does not apply to teleworkers.

The Antwerp Labour Court of Appeal ruled in the employee’s favour and held that, in the absence of a compliant telework agreement, the employee was not a ‘teleworker’ and was thus entitled to the cost allowance for homeworkers.

However, the Supreme Court overruled the Labour Court of Appeal’s judgment. 

The Supreme Court’s judgment

The Supreme Court’s recent ruling has confirmed that Article 119.6 of the Employment Contracts Act does not apply to teleworkers.

However, the fact that the employer and the employee did not enter into a written agreement in accordance with Article 6 of the CBA n° 85 would not, in the Court’s view, necessarily rule out structural telework. Even without a compliant telework agreement, an employee can still be regarded as a teleworker and will not be entitled to the cost allowance for homeworkers.

The ALTIUS Employment Team is available to assist employers in setting-up and implementing a temporary Covid-19 or a structural telework regime.

Written by

• Philippe De Wulf

  Partner

• Esther Soetens

  Counsel