The year 2023 is a time of fundamental changes in Polish employment law, which we systematically analyse and comment on in our blog. 23 March 2023. President signed a law amending the Labour Code in connection with the obligation to implement Directive 2019/1158 of the European Parliament and of the EU Council of 20 June 22019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, conventionally referred to as the “work-life balance directive”. The amended regulations will take effect within the next month.
Category: Labour law
The amendment to the Labour Code, which we have already described in our blog, introduced an extremely important way of working, especially popular during the COVID-19 pandemic, which is remote work. The main advantage of remote work is the possibility of performing it outside the employer’s premises, practically from anywhere in the world where the employee can perform his or her duties and obligations towards the employer. But can you work remotely for a Polish employer while staying abroad?
Remote work in the amended Labour Code
According to the newly added Article 6718 of the Labour Code, work may be performed:
- entirely or
- partially,
- at a location specified by the employee and
- agreed upon each time with the employer, including at the employee’s place of residence,
- in particular, using means of direct communication at a distance.
It is therefore important for both parties to the employment relationship to agree whether the work performed by the employee can be performed remotely and where the employee will perform the work.
In which document should the place of remote work be established?
The amendment provides several possibilities for introducing regulations on the place of remote work, including:
- a remote work order;
- an individual agreement between the employer and the employee;
- a remote work regulations;
- an agreement with a trade union organization.
In each of the above-mentioned documents, the parties to the employment relationship may specify how they will regulate the employee’s remote work.
Can the place of remote work be located outside the borders of Poland?
Looking at the statutory definition of remote work, it is possible to perform it outside the borders of Poland.
However, this solution may raise many more questions and doubts than it seems at first glance.
First of all, it should be kept in mind:
- in which country the employee will work remotely – due to tax regulations – the employee’s situation is simpler in the case of remote work in countries with which Poland has signed agreements on the avoidance of double taxation (such as Germany, France, Italy, or Sweden) – then the provisions of the relevant agreement apply, which regulate the nature of tax obligations due to being a tax resident of one or the other country;
- issues related to the insurance of an employee working remotely outside the borders of Poland – here, too, the choice of the country in which the employee decides to work should be carefully considered; this situation can be extremely important, for example, if there is an accident at work.
The situation will be problematic and raise doubts if the employee works remotely from a country with which Poland has not signed an agreement on the avoidance of double taxation (e.g., Colombia), because there is a risk of double taxation of income, so depending on the choice of the country in which the employee intends to work remotely, the provisions of the relevant country should also be taken into account.
What else should be considered?
It is also worth noting:
- if remote work is carried out on the employer’s directive, the employer has the right to revoke the remote work directive with at least two days’ notice – then the employee must return to work at the employer’s premises;
- Prohibition of discrimination due to performing remote work, as well as due to refusal to perform such work – allowing an employee to work remotely abroad, it should be noted that they must be treated like employees who do not work remotely, so as not to create potential liability for the employer to pay compensation.
Our recommendation
To summarize the issue of the possibility of remote work by an employee abroad, we recommend a careful analysis of the specific situation of each employee, taking into account the above-mentioned legal and tax factors.
The decision to allow remote work by an employee, especially for a longer period of time, should be properly considered and planned by the employer. The possibility of taking a so-called “workation” may sound very tempting for employees, but they should also remember about their duties and obligations towards the employer resulting from remote work.
Authors:
Paula Staszak-Urbańska, LL.M., Trainee attorney-at-law (PL)
Mateusz Turowski, Trainee attorney-at-law (PL)
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