As we have mentioned in previous posts, the beginning of 2023 is marked by one of the biggest amendments to labour law in several years. Extremely intriguing for all subjects of the employment relationship is the possibility of remote working introduced by the Act amending the Labour Code, in connection with which a number of practical questions arise, such as – under what circumstances can an employer refuse an employee to perform remote work, which we answer in the following post.
Who can make a binding request for remote working?
The newly added Article 6719 §6 of the Labour Code defines the circle of entities that may submit a binding request to the employer to perform remote work. These include, among others:
- an employee who is pregnant,
- an employee raising a child up to the age of 4,
- an employee caring for another member of the immediate family with a disability certificate (including a child over the age of 18).
It is worth noting that the catalogue of entities indicated in the provision is of a close nature, which means that only the employees indicated therein will be entitled to submit a binding request to the employer to perform remote work. The submission of the request obliges the employer to grant it.
When can an employer refuse remote working?
The possibility of refusing to grant an employee’s remote work request must be based on the employee’s inability to perform remote work either due to:
- the organisation of the work or,
- the type of work performed by the employee.
The employer must inform the employee of the refusal of the request and the reason for it within 7 working days from the date of submission of the indicated request by the employee.
Why might refusal be difficult?
When an employer, after considering an employee’s request, decides to refuse an employee’s request to work remotely, it will have to consider in each case not only whether any of the grounds for refusing the request will be applicable in the case of the employee in question, but also the reasonableness of invoking the ground in question in relation to a particular employee.
Given the high hopes associated with remote working among employees, it should be expected that a possible refusal by the employer may cause:
- feeling of tension or injustice;
- misunderstandings about the reason for the refusal of a request to work remotely;
- organisational problems on the part of the employer;
- lack of permanent staff.
The grounds for the type of work and the organisation of the work can be interpreted very broadly, which is why the employer’s failure to grant the employee’s request may even end up in an inspection by the National Labour Inspectorate (poln. PIP).
When can we be dealing with a justified refusal to work remotely?
Certainly, an employer that does not have adequate documentation of remote working – despite a formal implementation obligation – will not be entitled to refuse to allow an employee to work remotely due to the ground of lack of work organisation on the basis of the failure to introduce the relevant documentation, because:
- failure to comply with the employer’s statutory obligations cannot be a ground for refusing remote working to an employee;
- the possibility to work remotely is provided for in certain cases under the Labour Code.
So what could be the reason for refusal in certain cases? In our opinion, it could be, for example:
- work in a production department, requiring the operation of machinery (the premise of the type of work);
- work in a one-person secretarial office, with the need to constantly handle the telephone and receive office clients (the premise of work organization).
Especially problematic seems to be the refusal of remote work for office workers. Already there are opinions that even the work of HR employees allows, as a rule, to perform their duties remotely.
The introduction of remote working into the Labour Code, which employers and employees have been waiting for several years, and on which legislative work accelerated due to the COVID-19 pandemic, was supposed to make it easier for both parties to the employment relationship to carve out a way to work remotely without much doubt about the legal possibilities.
Although the final shape and wording of the legislation has been debated for a long time, in our view, there is no shortage of practical doubts regarding remote working, if only in cases where the employer does not want to grant the employee’s request to work remotely.
Undoubtedly, the current wording of the regulations dictates that any request by an employee to work remotely should be treated with consideration. Our recommendation is, first and foremost, not to act rashly – it is always worth considering whether, in a given case, as an employer we cannot apply even partial remote working to an employee. Meeting the expectations of employees in this respect will certainly have a positive impact on the atmosphere and efficiency of their work.
Paula Staszak-Urbańska, LL.M., Trainee attorney-at-law (PL)
Mateusz Turowski, Trainee attorney-at-law (PL)