Remote Work – Benefits and Legal Framework

These are by no means ordi­nary times, and being opti­mistic in such times is some­what absurd, how can one be opti­mistic when every­thing seems to be col­laps­ing? When it seems like the issue will only get worse before it gets bet­ter? Well, it is not easy, and maybe typ­ing it is eas­i­er than say­ing it out loud, but, yes, things will even­tu­al­ly get bet­ter.

We have all been lead­ing busy lives, we had a rou­tine and we fol­lowed it, we fol­lowed it so rig­or­ous­ly that it resem­bled a rit­u­al, it defined who we are. Yet sud­den­ly, every­thing came to a halt, and we have time on our hands, time to think, time to reflect, time to grow and bet­ter our­selves.

This brings me to my point: whether we liked it or not, we all had to adjust, and com­pa­nies had to enact a busi­ness con­ti­nu­ity plan. A great num­ber of com­pa­nies, togeth­er with gov­ern­ment author­i­ties (we thought we would nev­er see the day here!) resort­ed to remote work­ing.

The restric­tions imposed with­in many Euro­pean Coun­tries meant we had to adjust quick­ly, even if we did not like the idea of remote work­ing, in some instances this was the only way to keep a busi­ness going. This rapid adjust­ment helped us learn, amongst oth­er things, the fol­low­ing:

  • Hav­ing a meet­ing through video con­fer­enc­ing works just as fine as it does in per­son;
  • Work­ing from home is doable and has many ben­e­fits that we nev­er actu­al­ly thought of or explored before;
  • We can trust each oth­er at work, because we are a team and we have each other’s backs.

The benefits of remote working

One might ask, “are the ben­e­fits of remote work­ing only advan­ta­geous for employ­ees?” The answer to this is a straight NO. So, let’s delve into the ben­e­fits that employ­ers may reap through remote work­ing:

PRODUCTIVITY

A study con­duct­ed by Har­vard Busi­ness School found that Employ­ees who work from home are more pro­duc­tive than those work­ing in an office envi­ron­ment. This could be attrib­uted to sev­er­al mat­ters, such as the fact that, usu­al­ly, work­ing from home means that you are work­ing in a qui­eter envi­ron­ment. Increase in pro­duc­tiv­i­ty is also attrib­ut­able to short­er breaks and less break room con­ver­sa­tions about what hap­pened on Love Island or, in Malta’s case, on Xara­bank!

RESULTS

Employ­ees work­ing from home tend to pro­duce bet­ter results than those work­ing at an office. This may be due to the fact that the pro­duc­tiv­i­ty lev­el is high­er and that there is less office dis­tur­bance. Ask­ing all employ­ees to adapt to the same work­ing regime that an office envi­ron­ment brings about will not pro­duce the best results from each employ­ee. There­fore, giv­ing employ­ees more auton­o­my would sug­gest that such employ­ees pro­duce bet­ter results.

RETENTION

Flex­i­bil­i­ty seems to be the num­ber one fac­tor on the list of employ­ees to con­sid­er anoth­er job offer, there­fore, giv­ing your employ­ees flex­i­bil­i­ty means you might have a high­er reten­tion per­cent­age of employ­ees. Var­i­ous stud­ies have shown that employ­ees would take up anoth­er job if it offers more flex­i­bil­i­ty.

TALENT POOL

Remote work­ing enables employ­ers to choose the best can­di­date since this way the employ­er will not be restrict­ed from choos­ing a can­di­date who lives in a dif­fer­ent coun­try. This might also be help­ful for com­pa­nies who require native speak­ers of lan­guages oth­er than that of the coun­try where­in the com­pa­ny is estab­lished.

COST REDUCTION

Office space is EXPENSIVE and hav­ing employ­ees work remote­ly means that you can either opt for a small­er office or that you can rent out office space which is not being used up by your employ­ees. One must also con­sid­er oth­er expens­es in an office such as water and elec­tric­i­ty, wi-fi and office fur­ni­ture.

Remote Work - benefits for employers

Is remote working for everyone?

Remote work­ing may not work for every giv­en busi­ness, and, in the same way it may not work for every employ­ee. There are indi­vid­u­als who are more pro­duc­tive in an office envi­ron­ment, or oth­ers who have too many dis­trac­tions to work from home.

Offer­ing remote work­ing as an option would be the ide­al solu­tion, the employ­er will ben­e­fit from the above-men­tioned points, and employ­ees will have the option to choose to work remote­ly if they think this will work for them too.

Legal Framework of Telework in Malta

Now that I have con­vinced you that remote work­ing is the way for­ward for many busi­ness­es, I shall be tak­ing you through the legal frame­work relat­ed to tele­work­ing in Mal­ta, name­ly the Tele­work Nation­al Stan­dard Order.

S.L. 452.104 defines tele­work as a means of organ­is­ing and / or per­form­ing work, using IT in the con­text of an employ­ment con­tract where­in the work which could be car­ried out at the employer’s premis­es, is instead per­formed away from such premis­es on a reg­u­lar basis.

The Leg­is­la­tion lists down con­di­tions which must be adhered to in the case of tele­work­ing and pro­vides claus­es which offer com­fort to both the employ­er and the employ­ee in cas­es of tele­work­ing.

Listed on the contract of employment or in a separate agreement 

If a con­tract of employ­ment stip­u­lates that tele­work is a con­di­tion of employ­ment, the employ­ee would not be in a posi­tion to reject a request of tele­work­ing.

On the oth­er hand, the sit­u­a­tion is dif­fer­ent when the need of tele­work­ing aris­es dur­ing the course of employ­ment and tele­work­ing is not list­ed as a con­di­tion of employ­ment in the employ­ment con­tract.

In the lat­ter case, an employ­ee would have the right to refuse an offer of tele­work and the law makes it very clear that this shall not con­sti­tute a good and suf­fi­cient cause for ter­mi­nat­ing the employ­ment. A refusal to an offer of tele­work by an employ­ee does not cre­ate any right for the employ­er to change the con­di­tions of employ­ment of the employ­ee con­cerned.

A request for tele­work may come from the employ­er or the employ­ee, how­ev­er, in the case of an employ­ee request­ing tele­work, the law gives the employ­er the dis­cre­tion to accept or refuse such request.

Employees’ Status

When an employ­ee starts per­form­ing tele­work, whether this has been referred to as a con­di­tion in his con­tract of employ­ment or whether it came about through a sep­a­rate arrange­ment between the employ­er and the employ­ee at a lat­er stage, such employ­ee shall not be sub­ject to a change in his employ­ment sta­tus or his right to revert back to his pre­vi­ous post.

Right to terminate

Both the employ­er and the employ­ee have the right to ter­mi­nate a tele­work agree­ment and, in such case, the employ­ee would have the right to return back to his pre­vi­ous post. Just as in the case of refus­ing an offer of tele­work, if an employ­ee ter­mi­nates a tele­work agree­ment, such ter­mi­na­tion would not con­sti­tute a good and suf­fi­cient cause for the ter­mi­na­tion of the con­tract of employ­ment or for changes in the con­di­tions of employ­ment of such employ­ee.

What should an agreement of telework include?

The Law stip­u­lates that an agree­ment of tele­work shall, first and fore­most, be in writ­ing. The agree­ment shall include:

    1. infor­ma­tion on the loca­tion where the tele­work should be car­ried out;
    2. claus­es relat­ed to the equip­ment which will be used for tele­work, includ­ing the own­er­ship, lia­bil­i­ty, main­te­nance and costs;
    3. the amount of time to be spent at the work­place and at the place of tele­work – if an employ­ee will be inter­chang­ing between tele­work and work from the employ­ers’ premis­es;
    4. a sched­ule which should be fol­lowed by the employ­ee in the per­for­mance of his duties, if applic­a­ble;
    5. a descrip­tion of the work to be per­formed by the employ­ee;
    6. the depart­ment to which the tele­work­er is attached and the teleworker’s supe­ri­or;
    7. if there will be any mon­i­tor­ing car­ried out by the employ­er, there should be claus­es reg­u­lat­ing such mon­i­tor­ing*;
    8. notice of ter­mi­na­tion of the agree­ment of tele­work.

In cas­es where tele­work is not men­tioned in the con­tract of employ­ment as a con­di­tion of work, and hence, it is under­tak­en dur­ing the course of employ­ment, there should be includ­ed in the agree­ment of tele­work a ref­er­ence to the right of reversibil­i­ty by either par­ty which includes the right of the tele­work­er to be able to return to his pre­vi­ous post.

*where mon­i­tor­ing is to be car­ried out by the employ­er, both the employ­ee and the employ­er must agree to such mon­i­tor­ing which should be list­ed in the agree­ment on tele­work. The employ­er must make sure that the mon­i­tor­ing sys­tem is in pro­por­tion to the objec­tive whilst also keep­ing in mind that mon­i­tor­ing is to be intro­duced in accor­dance with the Coun­cil Direc­tive on the min­i­mum safe­ty and health require­ments for work with dis­play screen equip­ment.

No discrimination between employees

Employ­ees who under­take tele­work will con­tin­ue to enjoy all the rights men­tioned in the Employ­ment and Indus­tri­al Rela­tions Act, any reg­u­la­tion issued there­un­der, in any indi­vid­ual agree­ment or any applic­a­ble col­lec­tive agree­ment as the oth­er employ­ees enjoy at the premis­es of the employ­er.

When it comes to train­ing and devel­op­ment, a tele­work­er shall have the same rights of access to be involved in any train­ing and career devel­op­ment cours­es which are pro­vid­ed by the employ­er.

The leg­is­la­tor stip­u­lates that  there shall be no dif­fer­en­ti­a­tion between the work­load and per­for­mance stan­dards of employ­ees work­ing at the premis­es of the employ­er and the tele­work­er.

There­fore, this por­trays the leg­is­la­tors’ effort to make sure that there is no dis­crim­i­na­tion what­so­ev­er between a tele­work­er and an employ­ee work­ing at the employer’s premis­es.

Equipment

More often than not, the Employ­er is the one pro­vid­ing, installing and main­tain­ing the equip­ment required for the tele­work to be duly per­formed. How­ev­er, the employ­er and the employ­ee can agree, in the agree­ment of tele­work, that such equip­ment is to be sup­plied by the employ­ee him­self. If the agree­ment of tele­work is silent in this regard, then the pre­sump­tion of the law applies, i.e. that the equip­ment is to be sup­plied by the employ­er.

Remote work

Conclusion

Remote work­ing is increas­ing in pop­u­lar­i­ty each year, how­ev­er, I believe that after this year, the num­ber of remote based employ­ees will increase dras­ti­cal­ly.

One should note that tele­work­ing should be under­tak­en for the ben­e­fit of both the employ­er and the employ­ee. With this in mind, the employ­er will not abuse of his pow­ers to dif­fer­en­ti­ate between employ­ees and in turn, the employ­ee will do his utmost to be pro­duc­tive and deliv­er the expect­ed results.

Hang in there and stay safe!

 

Have you invest­ed in tech­nol­o­gy to enable your employ­ees to under­take tele­work between the 1st and 30th of March 2020? Kind­ly con­tact us if you require any assis­tance with the grant appli­ca­tion process.  

 

Dis­claimer*

The above-men­tioned arti­cle is sim­ply based on inde­pen­dent research car­ried out by Dr. Wern­er and Part­ner and can­not con­sti­tute any form of legal advice. If you would like to meet with up with any of our rep­re­sen­ta­tives to seek fur­ther infor­ma­tion, please con­tact us for an appoint­ment.

Leave a Reply

Your email address will not be published.