Insights

Apart from the well-known productivity issues, a 2022 change in the law poses management risks concerning remote work: remote workers are no longer exempt from working hours control and overtime. After the pandemic, remote work declined by 50% in Brazil (compared to 40% globally), presumably because employers are permitted to move from remote to onsite work without obtaining employee consent. In January 2023, 95% of general job ads were for onsite work (source: Infojobs). LinkedIn, known for upscale job posts, indicates that hybrid work positions in Brazil fell from 40% in 2022 to 25% in February 2023. Many workers acquired a taste for the flexibility of working from home and not needing to commute. According to an HR publication, many candidates put more weight on being able to work remotely than on salary or benefits (source: VC S/A, November 2023). Hybrid work seems to be the trend to accommodate employers’ and workers’ plans.

In Czechia, remote working is only regulated by law to a limited extent. There are almost no conditions and/or restrictions. The conditions for and extent of remote working are thus regulated almost exclusively by the employers’ internal regulations and agreements negotiated with employees. Whether employees can be called to the office (on days when they work remotely) will therefore depend on the content of the agreements and/or internal regulations.

In a Danish context, the trend in terms of home working is comparable to Spain. There has indeed been increasing scepticism towards complete or predominant home working; whereas home working for up to 2 days per week, on the other hand, remains quite common. If employers in Denmark want to roll back home working policies, they should be aware that it may constitute a material change in the employees’ terms and conditions of employment. If so, implementation will be subject to a notice period equivalent to the individual employees’ termination notice and the decision would have to be fair based on business needs.

Depending on what has been agreed on remote working and working location, employees who have mainly performed remote work may try to claim that remote working has become an established practice and thereby an essential term of their employment which the employer cannot unilaterally change without grounds for dismissal. Where this is the case, the employer may have to enter into formal consultation with the employees to change their working location.

In France, employees work an average of 3.5 days a week in the office, which is seen as a high rate. This can be explained culturally (the office is seen as a place for socialising and exchanging ideas with colleagues) and also practically (the size of homes does not always make teleworking ideal).

Generally, the choice of workplace can be set in the exercise of the employer’s managerial right. However, the company should check whether new remote work employment contracts have been signed or whether relevant clauses have been added to existing agreements. In such cases, the consent of the employee is required to amend these provisions and to increase the proportion of office work.

Employers can no longer unilaterally order their employees to work remotely. Remote work (as well as a hybrid work model) must be agreed upon in the employment agreement. Unless otherwise agreed, employees shall work no more than one third of the working days on an annual basis at the employer’s premises and should be entitled to work two third of the working days remotely. This means that the employee’s consent and an explicit agreement would be required to increase the percentage of office work above the statutory limit.

There is nothing to prevent employers seeking to reduce remote work, particularly if it was clear that this was never intended to be permanent. However, where an employee has a contractual entitlement to work remotely, or where they can establish that it has become an implied term of their contract through custom and practice, an employee’s consent would be required before any changes could be implemented.

As the trend of employees seeking remote or hybrid roles continues in Ireland, reducing such arrangements risks negatively impacting a company’s ability to retain and/ or attract talent. In a recently published national survey, ‘2023 Remote Working in Ireland Survey’, involving nearly 6,000 respondents, 92% indicated remote/hybrid working would be a key factor in their decision to change employer, while 44% indicated they would change job, even if it means a pay cut, if their remote working preferences were not facilitated.

New legislation entitling employees to request remote work was signed into law in 2023, although regulations are still awaited before this right will commence. Once commenced, all employees who have six months’ continuous service with their employer will have a legal right to request remote work. When an employer receives this request, they must respond with a decision within 4 weeks (can be extended to 8 weeks), must consider the employee’s needs and the business needs when deciding on the request (a code of practice will be published by the Workplace Relations Commission providing further guidance on this) and give reasons if a request is refused.

In general, remote work arrangements are within the employer’s prerogative. This means that, ordinarily, an employee has no automatic entitlement to work remotely and the employer has no general obligation to allow (or continue to allow) this. However, this prerogative is subject to general principles such as good faith, reasonableness and equality and therefore any change should meet these criteria. Further, even if the employer can change the work schedule without the employee’s consent, this does not mean that the employee could not have justified claims concerning a deterioration of their conditions depending on the circumstances. There may be circumstances where the remote work is regulated by a specific source (like an employment agreement) and if this is the case, any change is not merely within the employer’s prerogative. Instead, it may amount to a change of employment terms which would require the employee’s consent (and even a pre-hearing process).

In Mexico, companies have faced significant challenges, primarily stemming from employees’ reluctance to return to full-time on-site work. These challenges include difficulties in adapting to the new work environment and increased stress levels, as employees must contend with long commutes, traffic, in-person interactions with coworkers and their work teams. Employees argue that they once again need to find a balance between their work and personal life.

In Monaco, aside from the specific remote working scheme set up during the pandemic, remote work cannot exceed two-thirds of the employee’s weekly working time under Monegasque law. Remote workers must therefore work from the office at least 2 days a week (for a full-time employee). Increasing the percentage of office work may require the employee’s consent and individual work agreement’s revision depending on the provisions of the individual remote work agreement and the global framework agreement. The total withdrawal of remote working will require the employee’s consent and the signature of an addendum to the employment contract, as well as a modification of the work permit.

Where remote working arrangements were laid down in individual agreements, the employee’s consent would likely be required to either implement a hybrid work model or to increase the percentage of office work.

Where the remote or hybrid work arrangements were introduced by means of a policy, changing the policy could qualify as a change in employment conditions. If so, this would require an assessment of the interest of the employer set off against the interest of the employee. It could also require the consent of the works council.

Regardless of the legal challenges, labour shortages may well be biggest challenge employers would face in reducing remote work.

In New Zealand, an employee’s working arrangements depend on the terms of their employment agreement and relevant workplace policies. Where an employer wishes to introduce, vary, replace or withdraw a workplace policy regarding the employee’s working location, the employer should consult with affected employees. Employees also have a statutory right to request flexible working arrangements, including a different working location. Employers are obliged to genuinely consider such requests and can only refuse such requests of specific statutory grounds.

If a company wants to reduce remote work, but has already concluded a teleworking annex that expressly allows this for an indefinite period (and if there are no clauses that grant leverage of some kind) any change will require employee consent. This may, in practice, prove difficult to obtain. Without this consent, the employer won’t have the possibility to force employees to come back to office work or to sanction them for non-compliance.

Regular remote work must be agreed with the employee in the employment contract in writing. If the extent of this remote work was also agreed upon, it will be necessary to modify the employment contract, which requires the employees´ consent. We are already seeing considerable reluctance on the part of employees to (even partially) return to the offices. This is likely to be a major challenge for employers going forward.

The main challenge for employers will probably be the risk of this change being considered a fundamental change in working conditions. In that case, the implementation of any change would depend on obtaining employees’ written consent.

In considering whether a change is ‘fundamental’ certain points will be taken into consideration. These include the scope of the proposed change (e.g. transition to working entirely from the office or transition to working only 2 days a week from the office), how long the employees have been working remotely, and whether the employer reserved the right to change the remote working practice in the relevant remote work agreement.