Returning to the workplace, Part 1 – attention to detail (Belgium)

At the risk of kicking in an open door, working from home and the return to the office has become this summer’s hot topic. In Belgium the pandemic has meant that working from home where you could was mandatory until the end of June. Employees are now gradually returning to the workplace but surveys show that if it were left up to them, most would prefer to continue to work from home at least 2 or 3 days a week. Even the most strongly traditional employers will have difficulty imposing a regime where desk-based employees are required to come into work every day. Even if they do, it will impact their attractiveness as an employer. People have now tasted a different way of working and for the most part, quite liked it.

Working from home is hardly a new idea in Belgium: the legislative framework for it, the national Collective Labour Agreement nr. 85, was enacted in 2005, and has been a source of no excitement and frankly very little interest ever since. That may be about to change. In a series of blogs starting with this one, we will address some of commonest WFH questions arising in Belgium, as well as a couple of lesser-known peculiarities of the law in this newly emotive area.

It all starts with an addendum

What appears to be a Belgian particularity is that formally-agreed regular working from home requires a formal written addendum to the employment contract. A simple letter signed for receipt or the implementation of an existing WFH policy simply will not do.

CLA nr. 85 requires that the following be included in the addendum:

  1. the frequency of teleworking and the days on which teleworking is carried out vs. the days of attendance at the workplace;
  2. the times or periods during which the homeworker must be reachable while working from home and how (mobile phone, e-mail etc);
  3. the times when the worker can call upon technical assistance (since while the employee is working from home, he should have the same IT services he would have access to in the office);
  4. the arrangements whereby the employer reimburses or pays the costs relating to the homeworking (what these may cover will be addressed in one of the following blogs);
  5. the conditions and arrangements for returning to the employer’s business premises, and, in the event of a return to the office being required by either party, the notice period applying;
  6. the location(s) chosen by the teleworker to carry out the work.

And what if we don’t ?

While it may be tempting to skip the step of drafting individual contract addenda for the specific circumstances of each employee working from home and just to point them instead in the direction of your general policy on WFH, CLA nr. 85 includes a rather dissuasive provision. The sanction for not confirming the requisite WFH details in an addendum or for not including all the required details as outlined above, is that the employee may at any time request to return to the office, without giving any advance notice.

While this sanction is mostly theoretical in situations where the employee requested to work from home and/or the employer would be glad to see him back in the workplace anyway, this can all get rather awkward if the employer has adjusted the capacity of the offices to reflect increased WFH so that the employee no longer has a desk or has to be squeezed in closer to others than good social-distancing practice would allow. We have seen a significant rise in the number of Belgian employers rethinking their needs for expensive floor space, and so downsizing offices or subletting floors of their building. They may do so on the premise that certain employees have agreed that they are going to WFH for a certain part of each week, so there will be considerable embarrassment if that turns out not to be correct because those agreements are not properly recorded in the appropriate contract addendum.

In making those decisions, employers should not overlook the 20% of respondents in employee surveys who say that going forward, they will want to go back to the office full-time or at least 4 days a week. In particular for this population, employers will be well advised to have the working from home arrangements confirmed in writing, in a detailed addendum to the employment contract. Having your people back in the workplace should be a planned benefit, not an unexpected embarrassment when you run out of chairs.

Zie ook : Squire Patton Boggs LLP ( Mrs. Marga Caproni )

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