Home office and legal questions

15 May 2014. Working at home is nothing new. Until a few decades ago, it was customary throughout the education sector for teachers – including university professors – to prepare all their teaching and to do all their administrative work at home.

In the 19th century, many judges and civil servants also still worked at home because they simply did not have an office. People have tended to forget this. It was only with the major commuting flows and the concomitant substantial losses of time that it became customary again in the service sector to work partially from home.

Workplace in the living-room

This undoubtedly has great advantages: you do not have to commute and are able to work in a self-paced rhythm in a familiar environment furnished according to your own requirements. I myself always feel that the necessity to leave my flat in the morning in order to go to work verges on a violation of personality rights.

Needless to say, working from home also has shortcomings: it only makes sense if the general conditions are right. Employees must have a suitable workplace at home. This makes certain demands on the size of the living space. It must be possible to partition oneself off from the other family members to a certain extent. There is a danger of social isolation. Finally, the distinction between work and leisure may also become difficult.

Working hours and office material

Working from home does not take place in a legal vacuum. Work at home remains subject to employment contract law and to worker protection under public law. This results in a great number of legal questions, not all of which have been answered.

It is a matter of principle that the employer has to reimburse the employee for all the expenses necessarily arising from the execution of the work and to equip him or her with the material that is required for the work. Consequently, the employer has to make available a computer and other appliances. But what about heating, lighting and the office chair?

What about the private use of these appliances? Who is liable if they are damaged, for instance because the employee’s child fails to treat them with the necessary care, or if such an appliance damages the employee’s furniture?

To protect employees, labour law stipulates a maximum of 45 or 50 working hours per week. There must be breaks, and finally there is a basic ban on night and Sunday work. This also applies to people who work from home. If required, an employer is obliged to provide evidence of compliance with the rules to the labour inspectors. For this reason, working hours must be logged even if someone works from home.

Working from home across borders
Problems arise for cross-border commuters when they do some of their work at home. They work at home but in a foreign country. This may result in a situation whereby they are subject to the social insurance law of their country of residence throughout their working hours, while the Swiss employer no longer has to pay contributions to the Swiss old-age and survivors’/disability insurance scheme, but to the foreign social insurance scheme.

In addition, the question arises as to whether working from home is still subject to the above-mentioned working-hour rules of labour law. The Federal Court rather seems to have refuted this in its ruling of 11 September 2013. However, the last word on this matter has not been uttered yet.

Creating general conditions for new forms of work
These unanswered legal questions, however, should not impede working from home by any manner of means. The practical advantages of working from home are too great. The future will undoubtedly belong to a further expansion of this way of organising work. It is also important, though, that urban planning, building regulations and transport planning deal with the consequences of this development. The general conditions must be right for working from home to be organised for the benefit of employees, employers and families.