Mobile forms of work are trendy. Both employees and employers benefit from the additional flexibility in work performance. Start-ups and large companies have recognized that the possibility of performing part of the work outside the company increases their attractiveness as an employer. Mobile working means mutual trust. The foundations for this should be laid down in an agreement. Read more about this in the current article from our employment law experts.
Where do you work today? – Home office and mobile working
Modern forms of working such as home office, co-working spaces, desk sharing or mobile working are trendy and an appealing factor for employers. These new forms of work offer employees more flexibility and thus contribute a lot to employees’ motivation. They also further the return-to-work process of employees who are not able to be in the office at fixed times (e.g. parents of children in need of care). This freedom and flexibility means a challenge for both sides. For a successful and satisfactory implementation, a number of points need to be observed, which our employment law experts will explain below.
What is home office and mobile working?
The terms home office, co-working space, desk sharing or mobile working are not used by the authorities, which is why there are no corresponding definitions in the law. The basis of home office or other flexible forms of work is an individual employment contract. The four key elements of an individual employment contract are (i) the work performance, (ii) integration into a foreign work organisation, (iii) the arrangement of a continuing obligation and (iv) compensation of the work performance.
In the case of flexible forms of work, work is performed, partly or entirely, at the employee’s home or other premises outside of the employer’s workspace. Both home office in the closer sense (employee works at home) as well as in the broader sense (employee works outside the employer’s workspace) has been established well in the daily working life of employees with IT-based tasks and will continue to be established in the future. Therefore, it is essential that employers and employees are properly informed about the consequences of these new forms of work.
The slow legislative process is lagging behind the swift technological development as well as the associated new opportunities for home office or other mobile forms of work. However, this does not only have disadvantages but also advantages. Thus, the employees and employers enjoy flexibility within the current legal situation. They can specify what they understand by home office or mobile working in their contracts, and can define the rights and obligations of the parties.
For example, they can grant the employee a right to perform work from home; a right the employee would not have based on the statutory labour law in force today.
The main feature of home office and other mobile forms of work is that the employee does not perform his work on the employer’s premises. A too narrow literal interpretation of “home office” only covers work at the employee’s place of residence. For certain activities and with the broad use of IT-based work equipment, however, this interpretation is too narrow (e.g. co-working spaces, shared desks, mobile working). Especially in sectors with little personal contact, electronically available data and work performed on the computer or telephone, the attractiveness of employers can be increased, if home office is understood as mobile working.
The parties should make use of their freedom and design (or shape) the employment contract according to their needs. The choice of workplace is thereby only one point to be considered. What remains crucial is that the employee is integrated into the employer’s organisation at the respective place of work. The employer must be able to control the employee and issue instructions.
The statements show that it is recommended for employers and employees to specify their desired workplaces in the employment contract. A one-sided assignment of home office by the employer is not allowed. As the employer is responsible for the productivity planning of the company, it should reserve the right to withdraw home office or mobile working unilaterally and to ask the employee to return to his work at the office.
Working hours and workload
Labour law sets the maximum weekly working time for office staff at 45 hours. Depending on the daily working time, the employer must grant breaks of 15 minutes to one hour. Night shifts (11pm to 6am) as well as working on Sundays both require authorisation. No authorisation is required for work on weekdays, i.e. Monday to Saturday, between 6am and 11pm.
As for regular work performed in the company, the working time must be recorded for home office as well as other mobile forms of work. The employer must provide suitable tools for this purpose. In the same way, the above-mentioned regulations on working- and resting times apply, which means that also night shifts and working on Sundays is prohibited at home without a corresponding permit. Within the legal framework, the employee and the employer may conclude agreements which allow the employee to organise working hours in a more or less flexible way. Since any form of mobile working requires a special form of trust between the parties, a flexible organisation of working hours is useful for the ideal use of mobile workplaces.
If the employee cannot or should not carry out certain tasks in home office or co-working space, this should be taken into account at the definition of working hours as well as the workload for mobile working. It is not always possible to determine the work to be carried out in the company at the stage of recruitment or at the time of an agreement on mobile working. For this reason, the workload for mobile working is to be designed flexibly, so that the employer may grant the employee, for example, a workload of a maximum of 80 % home office, but reserves the right to specify this in concrete terms by means of instructions within the scope of their needs. Special challenges arise for employees with residence in the EU/EFTA area, who work at their place of residence or in the country of residence. In such cases, the workload at the place of residence must be limited to a maximum of 25 % (more on this below).
Infrastructure / cost regulation
The employer must provide the work equipment for the workspace in the company. The same applies in general to home office and other forms of mobile working. However, the employer and employee may agree that the employee shall purchase the equipment for work outside the workspace at his own expense. A unilateral order by the employer to purchase the work equipment is not allowed.
If the employee obtains the work equipment for his or her external workspace, he or she shall be adequately refunded by the employer unless otherwise agreed. But what kind of refund is appropriate? The employer must fully reimburse the purchasing costs for equipment obtained exclusively for mobile working. If the employee is already in possession of all the necessary equipment, he must be compensated for its use, taking into account various criteria such as the duration of business use and the market price.
Flat rates for the use of home office are very practicable, but always contain a certain vagueness. Possible, of course, would also be a combination of cost reimbursement for one-off purchases such as computers and printers and a monthly flat rate for the used space at the employee’s home or in a co-working space.
Last year, the federal court stated that in case of home office without a workspace in the company, the employer is owed compensation for the space provided by the employee. The situation would probably be similar if the employee only had a temporary workspace in the company (e.g. desk sharing). Such expenses are, from the employer’s point of view, to be considered as professionally necessary. If, on the other hand, the employee has a permanent workspace at the company and works at home only for personal reasons, the employer does not have to contribute to the costs. From the employer’s point of view, these costs are not necessary to the business. Between these two extreme scenarios, many other scenarios are imaginable in which it may be appropriate for the employer to contribute to the costs.
One advantage for the employer of using the employee’s equipment, apart from potential cost savings, is that the employee is familiar with it. The disadvantage for the employer, however, is that the employer cannot prohibit the private use of these private devices or devices specially purchased by the employee. This is accompanied by a slightly higher risk of violations of confidentiality, data protection and data security, in particular due to insufficient protective measures taken by the employee. Since the employer usually does not install and check the employee’s equipment, an assurance that certain minimum security standards are met (e.g. regarding the installation and updating of anti-virus software) and that all licenses are available, must be obtained in the employment contract.
A separation must be made between the above-mentioned costs for equipment and materials and the employee’s costs for expenses and maintenance for work at foreign locations. These must be reimbursed by the employer in any case. A deviating written agreement is not permitted. In order to avoid misunderstandings, the agreement should state that home office is not an external place of work and therefore no maintenance costs can be claimed.
Regardless of whether the employer also compensates the employee for equipment and materials or only for expenses, a flat fee is more convenient in everyday working life than a settlement based on receipt. In order to avoid hidden wage components in the reimbursement of expenses, a corresponding expense regulation, which provides flat-rate expenses, must be approved by the cantonal tax administration.
Home office or mobile workspace offer the employer and the employee a lot of flexibility. The great freedom is accompanied by the risk of disregarding the regulations of labour law. This applies in particular to health protection. The health protection regulations apply to all employees, including those who are excluded from the field of application of labour law due to their higher executive position.
By law, the employer is obliged to plan operational processes in a way that there is no risk to health and no overstraining. This requires support of the employees during work in the company, who should follow the safety-relevant instructions and, whenever possible, point out sources of danger. This applies even more so in home office. Relying on the employee in itself does not release the employer from implementing, monitoring and (if necessary) enforcing legal requirements in home office and other mobile forms of work.
If the majority of office work is done seated, it is important that the external workspace be designed ergonomically. Practice shows that this is not the case, especially in home office. As in its company, the employer should take reasonable protective measures. Thereby, the following applies: The greater the risk for the employee, the less important are the costs or the effort for the protective measures when determining the proportionality.
Home office as well as all other forms of external work are based on trust, which is why information and instruction of employees are crucial. The employer is recommended to get an impression of the external workspace, either with pictures, videos or an inspection. It is essential for the workspace to have daylight, little noise, a good indoor climate and ergonomic furniture. As a rule of thumb, the longer the employee works at home, the more the workspace should approach the standard required for the business. The instructions of the State Secretariat for Economic Affairs (SECO) are helpful in evaluating the workspace. Despite all efforts, the ideal conditions cannot be implemented in all mobile workspaces. This is likely to be rather difficult in trains or airplanes, for example. Consequently, only simple work can or should be carried out at such workspaces.
In order to protect the health of workers and raise awareness of regulations, appropriate agreements between workers and employers are recommended. Practice has shown that flexible work time models such as flexible time schedule with block time are particularly suitable for home offices. In order to help health regulations to achieve a breakthrough, the employer must be able to monitor the external workspace. In this regard, the employer should reserve access rights in the employment contract, which may not always be possible in every case (e.g. in the case of co-working spaces with personalised access).
Social security aspects
There are hardly any difficulties in this respect for employees who live and work in Switzerland. Only the differentiation between occupational and non-occupational accidents cannot always be clearly drawn in home office.
However, special attention should be paid to employment relationships with Switzerland’s neighbouring countries, especially with the EU. Between the EU and Switzerland, the principle of exclusivity applies. This means that the employees of Switzerland and the EU should be subject to social security law of only one contracting state. The consequence is that employees with an occupation in two or more EU states are subject to social security law at their place of residence, provided that a substantial part of the working time is performed or a significant part of the income is earned there. The essential requirement is a workload of 25 % or more of the total working time or the total earned income. In case of employers domiciled in different contracting states, the social security law of the place of residence of the employee is also applicable.
Since the new EU regulation came into force on April 1, 2012, the aforementioned 25 % limit also applies to work in home office with only one employer. For this reason, employees with foreign residence should only be allowed to work in home office to the extent of a maximum of 25 %. In the case of employers domiciled in Switzerland, the employer should reserve the right to unilaterally reduce the workload in home office or another foreign workspace in the country of domicile to a maximum of 25 % if the employee’s domicile is relocated abroad.
What else needs to be considered when it comes to mobile forms of work?
While the employer fully controls and provides the infrastructure on its premises, this is not or only partially the case with home office. Especially with today’s highly computer-based work, the employee can do his work in a specially equipped office at home or even at the kitchen table or in a co-working space. In general, the infrastructure at home differs significantly from the one at the employer’s workspace.
From a technical point of view, it has so far been found that home office in particular has a much less developed security infrastructure. Hence, there is often a lack of a secure wireless network, ways to lock away files, antivirus programs and firewalls, as well as obvious measures such as access control and locked doors.
Finally, the home office area is usually accessible 24/7 and thus exposed to the above-mentioned risks for much longer. In this context, particular attention should be paid to the implementation of data protection obligations under Swiss and international data protection law (in particular the European Data Protection Regulation GDPR or DSGVO). The same risks occur in a similar form in other types of mobile work. The employer can prevent these risks by providing sufficient instruction, raising awareness among employees, providing a computer exclusively for business purposes and by making contractual agreements in this regard.
In practice, unfortunately it is also the case that breaches of confidentiality in home office or outside the company occur more frequently. For example, employees leave their laptops on the train or they copy sensitive data from their laptops or even from the server at home. The employer’s control outside the company is clearly restricted, which is why the employee must be specifically informed of this in the agreement.
What are the consequences if a company’s server is hacked via home office of an employee? The employee is responsible for any damage he or she causes to the employer, whether intentionally or accidentally. It can be of importance on whose request the external workspace or home office was set up. The risk-sharing is more likely to be to the expense of the employer if home office was suggested by him or her or if it was necessary for business reasons, and vice versa if the employee requested working in home office.
Generally, the legal liability regulations can only be deviated from to the benefit of the employer. Aggravations or generalisations are not permitted. The same applies to the employee’s obligation to pay the costs of the company’s liability insurance. It is crucial for the employer to check whether its liability insurance also covers home office. The same is recommended for the employee with regard to his or her personal liability insurance.
If the employee has no access to the server or cannot perform his work for other reasons, he must report it to the employer immediately. In order to avoid longer absences, the employer may reserve the right in the agreement to order the employee to continue his or her work in the company or to make up for lost time.
Finally, the employer has also a duty of care for employees with home offices. He or she is obliged to protect the health of his/her employees. This sometimes involves excessive working hours, which are one of the many reasons for serious illnesses among employees (e.g. burnout). For this reason, the employer must also enforce the recording of working hours in home office and check that the ban on night- and Sunday working is observed. Should the employee nevertheless become ill, it should be noted that the obligation to wage continuation also applies in the event of incapacity of work in home office.
The employer needs to keep in mind that there is a place of jurisdiction for labour law disputes at the workspace. In international relationships, this may mean that the employer has to enforce its claims against the employee abroad.
Termination of mobile forms of work
In the daily work routine, it is usually only a practical approach that shows whether home office or other forms of mobile working meet the expectations of both the employee and the employer. From practical experience it can be heard that employees often feel isolated in home office, which is why the performance of the entire workload in home office and without a workspace in the company is rare. For the employer, it is usually crucial that the employee be at least as efficient at his or her external workspace as he or she is in the company. If these goals cannot be achieved for whatever reason, it is necessary to examine how and when home office is terminated and the employee is re-integrated into the company.
Particularly in view of these insecurities with home office, it can make sense for both parties to limit home office to a certain duration at the beginning or at least agree on termination options. Even without a settlement between the parties with regard to termination, the parties may of course end the home office by mutual consent at any time. If the employee works in the company again for a longer period of time, regardless of the agreed external workspace, a silent waiver of home office can only be assumed with great restraint.
If the work to be performed makes it necessary for the employee to return to work for a limited period of time, the employer may order it in a timely manner, provided the order is reasonable and relative.
The agreement between employee and employer should take account of the flexibility of these forms of work and allow for certain situational adjustments. One possible approach is for the parties to agree on a maximum workload that can be performed in home office. In this way, the employee can do without home office and there is no need for termination. At the same time, this offers the employer the possibility of restricting home office by means of instructions.
If the parties have not provided a regulation, the only remaining means of termination is notice of amendment or termination. The employee’s unilateral refusal to use home office may even result in the employee not performing his work at the agreed place. However, this does not mean that the home office is being terminated.
In addition to the termination options, the consequences of termination must also be defined. If, for example, certain items have been made available only for home office, these are to be returned upon termination. It must also be ensured that the employee deletes or destroys all the employer’s data at his home office workspace. Finally, when home office is discontinued, the compensation owed should also be waived and a workspace provided in the company.
Modern forms of work such as home office, co-working spaces and desk sharing offer both the employers and the employees new opportunities to use existing sources more efficiently. Such working models require trust and flexibility between the parties. In order to create transparency for both sides, the conclusion of an agreement on the external workspace is recommended. The key terms of such an agreement are: Places of work, necessary equipment, cost bearing, working time- and health regulations as well as termination conditions. These must in turn be compatible with the law as well as existing employment contracts and internal regulations. Employers are therefore challenged to define the conditions for mobile working themselves within the legal framework and thus increase the appeal of their company.
Our employment law experts will be pleased to support you in this regard.