The Requirements Imposed by law.
The current Covid-19 crisis has forced companies to re-think the way they operate, and transfer their operations online, with employees working remotely. Whilst telework is a possible working arrangement permitted under Maltese Law, certain requirements must be met.
Telework, in the context of an employment relationship, is the organisation or performing work away from the employer’s premises on a regular basis. This is normally carried out at the employee’s personal offices or residence.
Whilst telework may be required as a condition of employment, many employers are now seeking to introduce it for the first time out of necessity after government has advised employees to work from home. Teleworking can be introduced in the context of an employer-employee relationship so long as the law is observed and any changes to the conditions are communicated to the Department of Industrial and Employment Relations (“DIER”).
Where telework is not included in the Contract of Employment
Under normal circumstances, if an employer makes an offer of telework, the employee is free to accept or refuse. At the time of writing of this article, this is still the case and an employee’s refusal to telework is not a good and sufficient cause for terminating employment. It also cannot lead to a change in the conditions of the employment.
On the other hand, it is up to the employer to accept or refuse an employee’s request to opt for telework. The move to telework cannot affect the employee’s employment status, or the right to revert to the previous post occupied, or to a similar post in the event that the previous post is no longer available.
Either employer and employee are entitled to terminate a telework arrangement, in which case the employee shall revert to the pre-telework post. When the arrangement is terminated during the first two months, a three-day notice in writing has to be given to the other party. After the first two months, two weeks’ notice is to be handed in writing, unless a different period is agreed to in the written agreement on telework.
Employees are to continue to enjoy the same rights previously enjoyed in terms of law, or in terms of any applicable collective agreement and as laid down in the contract of employment.
What should an agreement for telework contain?
Irrespective of the fact whether the teleworking agreement is part of the original Contract of Employment or whether it is entered into afterwards, such an arrangement has to be writing and must contain written information which is particular to telework, including:
- The location where telework is to be carried out;
- The provisions related to the equipment used for telework, including its ownership, maintenance, liability and costs;
- The amount of working time to be spent at the place of telework and at the workplace;
- The schedule by which the employee will perform telework (where applicable);
- The teleworker’s immediate superior or persons to whom the teleworker is to report;
- Any provisions related to monitoring (if any);
- Notice of termination of telework agreement;
- A reference to the right of reversibility by either party, if telework is not included in the original employment contract.
The employer is typically responsible for providing, installing and maintaining the hardware necessary to work outside the office premises, and for providing the teleworker with an appropriate technical support. The teleworker is bound to take good care of the equipment and data provided by the employer.
Right to Privacy
The employer is in duty bound to respect the privacy of the teleworker and a monitoring system, such as a CCTV camera may only be set up if agreed in writing by both parties.
Moreover, appropriate measures are to be taken by the employer to ensure the protection of data used and processed by the teleworker and to take appropriate measures to ensure that the teleworker observes the provisions of the Data Protection Act.
Whilst the teleworker is responsible for the management of his or her working hours, the workload and performance standards are to be equivalent to those of employees working from the office. All necessary measures must be put into place to ensure that the teleworker is not isolated from the rest of the workforce, and teleworkers shall have the right to participate in and to stand for elections to bodies representing employees. Teleworkers also have the same right to access any training or any other career development programmes provided by the employer.
Luana Farrugia M.Adv
The information provided does not constitute legal advice.
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