PhD, Assistant Professor, Department of Labour Law and Social Law, University of Warmia and Mazury in Olsztyn, POLAND
15th February 2021
Nowadays, in times when remote work has become a customary mode of working during the pandemic for almost half of the EU employees (as the latest European research shows: https://www.eurofound.europa.eu/data/covid-19/working-teleworking), there is an urgent need to respect the employees’ right to disconnect. The Eurofound’s unique e-survey “Living, working and COVID-19” shows that in Poland, about 19% percent of respondents indicated that in the last two weeks they have been working over hours to meet the work demands every day or every other day, with another 22% doing so once or twice a week. More than 33% of workers declared being always or most of the time too tired to do the necessary household jobs. More that 18% felt not being able to dedicate enough time to their families because of the work, always or most of the time. The latest EU Working Conditions Survey’s results identify some critical aspects of regular work from home, showing that these employees are most likely e.g. to suffer from waking up repeatedly during sleep. According to the European Parliament’s report on “Health and safety in the workplace of the future” long-range managerial monitoring, demands for constant availability and blurred boundaries between private life and work may lead to psychosocial health and safety risks, including anxiety, depression, and burnout (https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/638434/IPOL_BRI(2019)638434_EN.pdf). As the European Observatory of Working Life EurWork indicates that telework has changed also the ways of controlling the employees – a constant use of smart phones and other digital devices with continuous remote access puts pressure for employees to be constantly accessible (https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/right-to-disconnect).
With this introduction to the ways that pandemic has changed the global world of work, it needs to be presented, how the Polish legal system reacted to a large scale of work from home and problems that have occurred in the organization of the working performance. First of all, there is an important legal question regarding what we understand by telework and remote work in Poland. In fact, remote work and telework are often being used as synonyms, which can be misleading for both of the parties of the employment contract and can lead to violating the basic principles and obligations regarding these two separate modes of work.
Telework is defided in the Polish Labour Code in the article 675 as a possibility to perform work regularly outside the workplace, with the use of electronic means of communication. Before the pandemic, in the Polish legal system there has been no regulation of remote work as such – it has been introduced by the legislator in the first anti-COVID regulation from the 2nd March 2020 – Act on specific solutions related to the prevention, counteraction and eradication of COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws 2020 item 374 with the following amendments). According to the article 3 of the Act in order to counteract COVID-19 an employer has been given the possibility to instruct an employee for a fixed period of time to perform work specified in the employment contract, outside the place of its permanent performance (which has been defined by the legislator as “remote work”). The instruction to work remotely did not require prior consent of the employee. In practice, it led to some critical questions and problems in the working performance regarding health and safety at work, lack of technical skills and equipment or the necessity to combine home office simultaneously with remote education and childcare (due to the closure of schools and kindergartens).
Remote work defined and performed according to these provisions has been unknown to the Polish labour law before the pandemic crisis. In fact, due to the lack of precise regulations of remote work, problems of interpretation of the mutual obligations of the parties have arisen. One important amendment to the provisions on remote work has been introduced in June 2020 – a legislator has put some important limits to the power of the employer to instruct an employee to work remotely. A condition has been added to the article 3 of the act, regulating that remote work may be ordered if the employee has both technical and local skills and capabilities to perform such work. Other problems regarding e.g. the power of control of the working performance, the responsibility for the health and safety at work, especially when it is provided from home, have not been solved yet. Though, projects to introduce remote work permanently to the Labour Code have been discussed – regulations on remote work are supposed to replace teleworking in the Labor Code but no legal acts have been approved yet.
If we look closely on the psycho-sociological consequences of the remote work, one of the aspects that need to be addressed as soon as possible, is the right to disconnect. The importance of this provision is to guarantee to the employees the possibility to establish proper boundaries in the use of electronic communication tools in such a way that would protect them from discrimination in case of not being constantly online. It is also related to the better work-life balance objective and should be interpreted in connection with the principles of European Pillar of Social Rights (https://ec.europa.eu/commission/sites/beta-political/files/social-summit-european-pillar-social-rights-booklet_en.pdf).
Some initiatives both legal and informal have been taken in different European countries (including France, Spain or Italy) but the Polish legislator has not addressed this question in the remote work regulations yet. In the lack of provisions regulating the right to disconnect, for the period in which employees are particularly vulnerable to violations of this right, it may be derived from already existing fundamental rights such as:
– the right to rest and leisure, including reasonable limitation of working hours
-the right to health and safety in the workplace
– or the right to privacy.
To conclude, we need to take into consideration that remote work has not only become a common mode of performing work but it is set to become a permanent solution in many national legislations, Poland included. In order to separate paid work and personal life, concrete meassures regarding the right to disconnect should be taken in the nearest future. The lack of legal regulations and the amount of already existing controversies in the performance of remote work in Poland opens a space for dialogue and comparative discussion in this topic.