- 01 Feb 2021
- Dorothée David
The Grand-Ducal Regulation of 22 January 2021 declaring the convention of 20 October 2020 on the legal framework for teleworking (hereinafter the “Convention”) a general obligation, was published in Mémorial A no. 76 of 29 January 2021, and came into force on 2 February 2021.
The main new points introduced by the Teleworking Convention are the following:
- Scope: all employees covered by the Labour Code fall under the scope of the Convention, apart from those subject to public law or similar, employees posted abroad, employees in the transport sector in the broadest sense of the term (apart from administrative staff), sales representatives, employees in “co-working spaces”, involved in “smart working” or any service provided outside the company to customers.
- Definition of teleworking: teleworking is a form of organising or carrying out work, generally using information and communication technology, so that the work, which would normally be carried out at the employer’s premises, is carried out somewhere other than these premises. The Convention does not specify the employee’s home as the location of the teleworking.
- Regular or occasional teleworking: the Convention specifies that teleworking is occasional when it is carried out in response to unexpected events, or when teleworking represents less than an average of 10% of the annual working time (calendar year). Teleworking is regular in all other cases.
- Agreement between the employer and the employee: teleworking always depends on the willingness of the parties, in that it must only be established by mutual agreement between the employee and the employer. However, the Convention stipulates the following procedure: a written agreement between the employer and the employee is required for regular teleworking, whereas written confirmation given by the employer to the employee authorised to telework is all that is needed for occasional teleworking.
- Mandatory information: for regular teleworking, the written agreement must contain the following elements:
- the location of the teleworking or how that location is decided;
- the times and days of the week during which the employee will telework and needs to be reachable by the employer, or how these periods are decided;
- any compensation procedure for the loss of any benefits in kind to which the employee would normally be entitled when working at the company’s premises;
- any fixed monthly total to be paid by the employer to cover connection and communication costs and;
- the procedure for switching or returning to the traditional way of working.
Article 4 of the Convention specifies that these elements can also be defined within the context of a specific teleworking scheme defined within the company or the area of business, via a collective agreement or a subordinated agreement (accord subordonné), or at company level, depending on the authority of the staff delegation.
- Role of the staff delegation: the staff delegation is kept regularly informed of how many people are teleworking and how this situation is evolving within the company. Furthermore, the staff delegation must be informed and consulted before a specific teleworking scheme is introduced or changed within the company, and will even have to give its approval on this matter in companies with at least 150 employees.
- Removal of the adjustment period: the Convention no longer stipulates an adjustment period (i.e. the right to return to the traditional way of working) when teleworking is introduced during the course of the contract.
- Teleworking equipment: the Convention stipulates that for regular teleworking, it is up to the employer to provide the equipment needed for the teleworking and to cover the costs directly incurred by the telework. This can be in the form of a fixed monthly total to be agreed in writing by mutual agreement. The employer is fully responsible for the costs connected to the loss of or damage to equipment and data used when work is carried out remotely, apart from cases of gross negligence or deliberate damage by the employee, in accordance with article L.121-9 of the Labour Code.
- Organisation of teleworking: the Convention specifies that “the organisation of working hours follows the rules applicable within the company” and that the parties must agree how overtime hours will be worked, keeping as closely as possible to internal procedures. The employer must make sure that overtime is an unusual occurrence. Furthermore, it is specified that any provision relating to the “right to disconnect” must apply fairly to a traditional worker and a teleworker.
- Equal treatment with traditional workers: the employer must make sure that the principle of equal treatment is respected in terms of working conditions as well as working times, payment terms, conditions for and access to promotion, collective and individual access to continuing professional training, privacy and data processing for monitoring purposes. The Convention specifies that “employees must not be subjected to any discrimination due to their status as teleworkers”.
- Respect for employees’ privacy: teleworkers are allowed to request an inspection visit: from the company’s occupational health department, the health and safety representative, or the Inspection du Travail et des Mines (Labour Inspectorate). However, the new Convention removes the right to access the site of teleworking previously enjoyed by the employer, the health and safety representative and the competent authorities.
- Employer’s obligations: the employer is totally responsible for the risks incurred by the company’s business, including within the context of teleworking. In particular, the employer must ensure the protection of data “including personal data”, which is used and processed by the teleworker for professional reasons, and must, as far as this matter is concerned, take the measures imposed by the law and by the GDPR. The employer is still bound by information obligations related to the company’s relevant data protection rules and the company’s policy on health and safety in the workplace. Training for teleworking is its responsibility when necessary or requested. However, the new Convention no longer stipulates that the employer must make sure that electrical installations and workplaces are compliant before any work is carried out remotely from home, nor the obligation to give the employee written information about insurance policies taken out to cover the loss of or damage to teleworking equipment.
 i.e. Work carried out in a satellite office outside the company.
 i.e. Occasional work carried out on a smartphone or laptop computer outside the place of work or usual teleworking location.
 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing directive 95/46/EC (General Data Protection Regulation).