Labour law and working from home during and after the pandemic

2 July 2021. “Digitalisation makes the world of work more flexible. But actually, digitalisation solves more problems than it creates,” says Prof. Dr. Isabelle Wildhaber, expert in labour law at the University of St.Gallen (HSG). In the year of the corona pandemic, the Professor of Private and Commercial Law at the Research Institute for Work and Working Environments has dealt intensively with the legal peculiarities of working from home.

Working from home: trust is more important than checks

“When it comes to working from home, trust is more important than checks,” says Isabelle Wildhaber. Personal responsibility and trust play a larger part when people work from home than in the normal case with regular attendance times at the workplace. “Employers fare better if they place their trust in employees instead of checking on processes, particularly as such checks are difficult to conduct when people work from home,” says Wildhaber. This applies all the more in times of crisis, explains the expert: “When people work from home in times of crisis such as the corona pandemic, employees’ loyalty must be rated higher than in the normal case.” At the same time, employers have a greater duty of care in relations with their employees. “Since there were many grey legal areas during the pandemic and there still are, it makes most sense to engage in dialogue.”

Health protection and working hours

When people work from home, health protection is an important factor: this must also be guaranteed when people work from home; if it is not, the employer will be liable. “Many employers are not quite aware of this. Working hour regulations also have to be complied with when people work from home: in Switzerland, for instance, you need special permits for working at night and on public holidays.” Thus WFH still means working at the agreed times and it does not mean working at any time, no matter when and no matter how, in the way that many people conceive of it in the context of “New Work”, underlines the expert. “All those who are involved in the working process are bound by applicable labour law, also when they work from home and also in times of crisis. This is primarily for the protection of employees.” Employees share in the responsibility for an ergonomic work posture and compliance with working hour regulations; in cases of conflict, though, it is the employer that is liable.

Another aspect that the labour law expert finds interesting is the ban on surveillance methods and spyware in working computers that is applicable in Switzerland. Swiss labour law does not provide, either, that employees may be subjected to health protection and ergonomic checks at home. In Germany, however, this right of access on the part of the employer to an employee’s home is sometimes contractually provided, explains Isabelle Wildhaber. In Switzerland, checks on employees working from home were not provided for by the Covid-19 Ordinance even during the pandemic.

Cross-border commuters, insurance and liability

When people work from home, this also gives rise to insurance issues. Problems with social insurance may affect cross-border commuters, in particular. What per cent may a cross-border commuter work from home without becoming subject to social insurance in his country of residence? Furthermore, the exemplary “fall caused by a Lego brick on the way to the kitchen” in an employee’s flat constitutes a new challenge under accident law. Is this an occupational accident? And work stress is an important point: ultimately, the employer is responsible for the stress generated by the workload if this results in health problems. The WFH manual provides information about this, too, combined with guidelines for different cases.

WFH regulations in companies

It is precisely at this time, after the easing of the Covid-19 measures, that companies should definitely draw up general WFH rules and familiarise their employees with them, advises Wildhaber. This will also reinforce employees’ self-empowerment and right of participation. “I regard the provision of information and directives as the best style of leadership when it comes to working from home,” says the labour law expert. “In most cases, a high degree of control leads to inefficiency and demotivates employees.” At the same time, she considers it to be important that personnel management should show employees that time sovereignty is limited in Swiss labour law. “Flexitime and working hours have to be complied with; this applies to both staff and management. Flexible work models also have to comply with applicable labour law,” says Wildhaber.

WFH manual as a guideline for practice

In its seven chapters, the manual deals with a wide variety of legal aspects of working from home: introduction and termination (including entitlement and obligation), allocation of costs, health protection and working hour regulations, liability and insurance, data protection and data security, taxation and cross-border matters. In this way, it provides users with an overview of the practically relevant problems. The individual chapters have been written by acknowledged experts in their respective legal fields. Prof. Dr. Isabelle Wildhaber’s WFH manual was published on 2 July 2021.

Title: Wildhaber, Isabelle (ed.): Homeoffice Handbuch, Dike Verlag, Zurich 2021.

Image: Unsplash/ Jonathan Borba