Due to the corona crisis, the number of employees working from home has increased spectacularly. For employers, it is therefore important to provide a good framework for remote work. What forms of ‘homework’ exist exactly? And what are the differences in terms of reimbursement of costs? A recent judgment of 5 October 2020 from the Belgian Supreme Court sheds an interesting light on this.
From a labour law perspective, there are three different legislative frameworks within which work can take place from home:
The essential difference between homework on the one hand and structural and occasional telework on the other hand is that telework uses information technology (modern telecommunication). The essential difference between structural and occasional telework is that structural telework is performed on a regular basis (not necessarily on fixed days) and occasional telework is only incidental (due to force majeure or for personal reasons of the employee, e.g., a technician’s visit).
The rules regarding reimbursements of costs are different for these three types of ‘homeworking’.
For homework, the Employment Contracts Act states that a written agreement must be concluded that must set out the reimbursement of costs related to the homework. In the absence of such a statement, the employer owes a lump sum of 10% of the salary as reimbursement of costs (or even a higher allowance if the employee can prove that his or her actual costs are higher).
For structural telework, CBA No. 85 states that a written agreement must be concluded which must include agreements about the costs and expenses associated with the telework. In the absence of a written agreement, the sanction provided for is not the allocation of a specific allowance, but the right of the teleworker to carry out his work at the employer’s premises or to return to the employer’s premises.
For occasional telework, the Act on ‘workable and agile work’ states that the employer and employee should agree on the possible reimbursement by the employer of the costs associated with occasional telework.
In a recent judgment of 5 October 2020, the Supreme Court ruled on the difference between ‘homework’ and structural telework in terms of reimbursement of costs.
The case was based on a claim by an employee for the payment of an expense allowance of 10% in accordance with the legislation on homeworking. The employer contested that this reimbursement was due because the employee was a ‘teleworker’ within the meaning of CBA No. 85.
According to the Antwerp Labour Court, the employee should indeed be regarded as a ‘homeworker’ and not as a ‘teleworker’ because there was no written agreement that met the requirements of CBA No. 85 on telework. As a result, the reimbursement of costs of 10% was granted.
The Supreme Court overruled this judgment and ruled that the mere fact that no written agreement was concluded between employer and employee in accordance with CBA No. 85 did not prevent the employment relationship between them falling within the scope of that CBA. According to the Supreme Court, the Labour Court did not legally exclude the possibility that the employee is a teleworker within the meaning of CBA No. 85 and the decision that the employer owes a reimbursement for homework was not legally justified. The case was referred to the Labour Court in Ghent.
To avoid such discussions, employers are advised to develop a clear policy on (structural) telework and to conclude a written agreement (or annex to the employment agreement) for each individual teleworker, in which, among other things, agreements are made about costs.