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Introducing permanent remote working – What must companies do?

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Legal news
calendar 21. February 2021
globus Sweden

Due to coronavirus, many companies have had employees working from home for nearly a year to comply with recommendations from the Swedish authorities. As a result of vaccination efforts, employees are expected to return to their usual place of work within a couple of months. However, many companies are currently investigating the possibility to continue remote working after the pandemic. We have therefore taken closer look at what this would require from an employment law perspective.

The extensive remote working, which has lasted for nearly a year, may have had positive effects for many companies, such as digital and organisational development, surprisingly high efficiency, or cost-cutting.

Before the upcoming return to the ordinary workplace, many companies are therefore wondering whether they can permanently arrange a more flexible workplace, for example by making their employees work from home, fully or partially, even after the pandemic – and if so, what are the requirements?

Make a risk assessment of the work environment

Before companies initiate any changes to its activities, such as implementing permanent remote working for the entire or parts of the staff, they must assess whether the changes entail risks for the employees’ health or risk of accidents, which may require additional measures.

This obligation follows from the Swedish Work Environment Authority’s provisions on systematic work environment management. The risk assessment must be documented in writing and, among other things, state the risks at hand and whether or not they are serious.

Consult with the trade union

Remote working introduced due to coronavirus has so far not been considered a significant change to activities, or to working or employment conditions, which triggers an obligation to consult with the trade unions. The reason is assumed to be that coronavirus has been considered to be of temporary character, despite that it has now lasted for a long time.

When the pandemic and recommendations from the Swedish authorities on remote working cease, or if the company already beforehand decides that remote working will continue irrespective of coronavirus, any decisions on remote working will have a more permanent character. This should trigger an obligation to consult with the trade unions.

For companies bound by a collective agreement, this means that the company must invite the trade union to consultation, and complete the consultation, before deciding to implement permanent remote working. Companies not bound by a collective agreement are normally only obligated to consult on this type of matters if they specifically relate to one or a few employees. If that is the case, the company must consult with all trade unions in which the affected employees are members.

Renegotiate employment contracts

As a main rule, the remote working must be voluntary, meaning that the company cannot force employees to work remotely. If the company expects employees to work remotely, for example for two to three days per week, in order to reorganise or reduce the premises, such an obligation should be agreed with the employees.

Furthermore, a change to the workplace must be confirmed in writing, for example in a revised employment contract or a remote working agreement. In a remote working agreement, it can further be beneficial to regulate matters like the extent of the remote working, the setup of the remote workspace and insurances. As a minimum, the company should draft remote working policies which clarify what applies. If the company is bound by a collective agreement, it should pay attention to any special regulations in the agreement.

IUNO’s opinion

Before a company decides to introduce permanent remote working, it is important to observe the applicable work environment requirements, and that the company may be obligated to consult with the trade union. The company should further remember that the remote working as a main rule must be voluntary, which may require renegotiation of the contracts with the employees.

IUNO recommends that companies which are uncertain of how to proceed seek legal advice before deciding to introduce permanent remote working.

The extensive remote working, which has lasted for nearly a year, may have had positive effects for many companies, such as digital and organisational development, surprisingly high efficiency, or cost-cutting.

Before the upcoming return to the ordinary workplace, many companies are therefore wondering whether they can permanently arrange a more flexible workplace, for example by making their employees work from home, fully or partially, even after the pandemic – and if so, what are the requirements?

Make a risk assessment of the work environment

Before companies initiate any changes to its activities, such as implementing permanent remote working for the entire or parts of the staff, they must assess whether the changes entail risks for the employees’ health or risk of accidents, which may require additional measures.

This obligation follows from the Swedish Work Environment Authority’s provisions on systematic work environment management. The risk assessment must be documented in writing and, among other things, state the risks at hand and whether or not they are serious.

Consult with the trade union

Remote working introduced due to coronavirus has so far not been considered a significant change to activities, or to working or employment conditions, which triggers an obligation to consult with the trade unions. The reason is assumed to be that coronavirus has been considered to be of temporary character, despite that it has now lasted for a long time.

When the pandemic and recommendations from the Swedish authorities on remote working cease, or if the company already beforehand decides that remote working will continue irrespective of coronavirus, any decisions on remote working will have a more permanent character. This should trigger an obligation to consult with the trade unions.

For companies bound by a collective agreement, this means that the company must invite the trade union to consultation, and complete the consultation, before deciding to implement permanent remote working. Companies not bound by a collective agreement are normally only obligated to consult on this type of matters if they specifically relate to one or a few employees. If that is the case, the company must consult with all trade unions in which the affected employees are members.

Renegotiate employment contracts

As a main rule, the remote working must be voluntary, meaning that the company cannot force employees to work remotely. If the company expects employees to work remotely, for example for two to three days per week, in order to reorganise or reduce the premises, such an obligation should be agreed with the employees.

Furthermore, a change to the workplace must be confirmed in writing, for example in a revised employment contract or a remote working agreement. In a remote working agreement, it can further be beneficial to regulate matters like the extent of the remote working, the setup of the remote workspace and insurances. As a minimum, the company should draft remote working policies which clarify what applies. If the company is bound by a collective agreement, it should pay attention to any special regulations in the agreement.

IUNO’s opinion

Before a company decides to introduce permanent remote working, it is important to observe the applicable work environment requirements, and that the company may be obligated to consult with the trade union. The company should further remember that the remote working as a main rule must be voluntary, which may require renegotiation of the contracts with the employees.

IUNO recommends that companies which are uncertain of how to proceed seek legal advice before deciding to introduce permanent remote working.

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Anders

Etgen Reitz

Partner

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Tägtgård Coter

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Hessellund Klausen

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