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Employer did not have to consult trade union when deciding that an employee could not work from home

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Legal news
calendar 20 December 2020
globus Sweden

An employer decided that an employee was no longer allowed to work from home, without consulting the employee’s trade union beforehand. The employee considered this a breach of the Co-determination in the Workplace Act, but the Swedish Labour Court ruled that this was not the case as the employee had not generally been allowed to work from home to begin with.

A church musician had to perform his work in the premises of the employer, a pastorate, in accordance with his employment document. However, from the very beginning of the employment, the employee worked from home occasionally and continued to do so for several years. The employer then informed the employee that he was not allowed to work from home.

In accordance with the Co-determination in the Workplace Act, an employer must initiate consultations with an employee’s trade union before making any significant changes to the employee’s working or employment conditions. Changes that are only temporary or of minor significance are not covered by this consultation obligation. In this case, the employee claimed that the employer had breached their obligations, as the employer had not consulted the employee’s trade union before deciding that he was not allowed to work from home.

According to the employer, the employee was only allowed to work from home in special cases. The notification that the work must be carried out at the workplace did therefore not constitute a significant change in the employee’s working conditions in the employer’s opinion.

The Swedish Labour Court was to decide whether the employer’s notification constituted a significant change in the employee’s working conditions and whether the employer therefore should have consulted the employee’s trade union, in accordance with the Co-determination in the Workplace Act.

Should the employer have initiated a consultation beforehand?

The Swedish Labour Court established that according to the employment document the workplace was located at the premises of the employer. The Court further relied on the employer’s statement that they relatively early, had tried to clarify that the employee was not allowed to work from home by explaining that he had to be at the workplace. The Court therefore ruled that the employee was not allowed to work from home to a greater extent, even if he had done so in the past.

Furthermore, the Court acknowledged that the employer’s notification was indeed a change for the employee but found that the notification was a result of the employee working from home to an extent that was in contrary to his instructions. The notification therefore did not constitute a significant change in the employee’s working conditions and the employer had not breached its obligation to consult.

IUNO’s opinion

Due to the coronavirus, many employees are working from home. This judgement shows that a decision to change the workplace from the company’s premises to the employees’ home or vice versa, may constitute such significant change that triggers the obligation to consult in accordance with the Co-determination in the Workplace Act.

The judgement also indicates that lack of clarity when implementing changes risks causing an obligation to consult. For example, if the time frame and terms for the change are not clear, employees may not understand or experience that the change is temporary. If unclear conditions apply for a longer period, this risk may increase. As a result, a later decision that the employees are obliged to return to the ordinary workplace may be perceived as a significant change, which the trade union may want to consult.

IUNO therefore recommends that companies communicate clearly and that they, before making changes to an employee’s working or employment conditions, consider if the changes may be covered by an obligation to consult, in accordance with the Co-determination in the Workplace Act.

[Swedish Labour Court Case 65/2020 of 25 November 2020]

A church musician had to perform his work in the premises of the employer, a pastorate, in accordance with his employment document. However, from the very beginning of the employment, the employee worked from home occasionally and continued to do so for several years. The employer then informed the employee that he was not allowed to work from home.

In accordance with the Co-determination in the Workplace Act, an employer must initiate consultations with an employee’s trade union before making any significant changes to the employee’s working or employment conditions. Changes that are only temporary or of minor significance are not covered by this consultation obligation. In this case, the employee claimed that the employer had breached their obligations, as the employer had not consulted the employee’s trade union before deciding that he was not allowed to work from home.

According to the employer, the employee was only allowed to work from home in special cases. The notification that the work must be carried out at the workplace did therefore not constitute a significant change in the employee’s working conditions in the employer’s opinion.

The Swedish Labour Court was to decide whether the employer’s notification constituted a significant change in the employee’s working conditions and whether the employer therefore should have consulted the employee’s trade union, in accordance with the Co-determination in the Workplace Act.

Should the employer have initiated a consultation beforehand?

The Swedish Labour Court established that according to the employment document the workplace was located at the premises of the employer. The Court further relied on the employer’s statement that they relatively early, had tried to clarify that the employee was not allowed to work from home by explaining that he had to be at the workplace. The Court therefore ruled that the employee was not allowed to work from home to a greater extent, even if he had done so in the past.

Furthermore, the Court acknowledged that the employer’s notification was indeed a change for the employee but found that the notification was a result of the employee working from home to an extent that was in contrary to his instructions. The notification therefore did not constitute a significant change in the employee’s working conditions and the employer had not breached its obligation to consult.

IUNO’s opinion

Due to the coronavirus, many employees are working from home. This judgement shows that a decision to change the workplace from the company’s premises to the employees’ home or vice versa, may constitute such significant change that triggers the obligation to consult in accordance with the Co-determination in the Workplace Act.

The judgement also indicates that lack of clarity when implementing changes risks causing an obligation to consult. For example, if the time frame and terms for the change are not clear, employees may not understand or experience that the change is temporary. If unclear conditions apply for a longer period, this risk may increase. As a result, a later decision that the employees are obliged to return to the ordinary workplace may be perceived as a significant change, which the trade union may want to consult.

IUNO therefore recommends that companies communicate clearly and that they, before making changes to an employee’s working or employment conditions, consider if the changes may be covered by an obligation to consult, in accordance with the Co-determination in the Workplace Act.

[Swedish Labour Court Case 65/2020 of 25 November 2020]

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