Teleworking in Belgium: the legal framework and key considerations
Published on 19th Nov 2020
The outbreak of the Coronavirus has forced many employees to work from home. This has proven popular and many are eager to continue working remotely. Their reasons include: increased productivity and autonomy, saving time and avoiding the daily commute. Although the desire to organise homeworking is present among both employees and employers, many employers are not well prepared for this impending homeworking era as they still lack the culture or documentation to support it. In this insight we look at a few legal aspects a company needs to take into account when implementing structural homeworking under Belgian law.
To read more about specific measures around contractually structuring and reimbursing homeworking, read our related insight here.
Belgian law provides a legal framework for structural teleworking. Legally speaking, structural telework is the performance of work which could be performed on the premises but is instead performed outside the employer's premises on a regular basis, using information and communication technology (ICT). This includes working from home. However, there is a distinction between structural telework and occasional telework (telework that is performed sporadically, not regularly), as different legal frameworks apply to each.
An employee is only entitled to occasional telework in cases of force majeure or in case of personal reasons. Homeworking is not a right for employees, but is arranged on a voluntarily basis for both the employee and the employer. The flip side of this is that the employer cannot impose homework on the employee if this was not originally agreed on in the employment contract, or added in an annex to the employment contract at a later date. Moreover, not all employees are eligible for homework. The definition of structural telework refers to work that could be performed either at the employer's premises or remotely, meaning that the function and tasks of the employee should lend themselves to homeworking.
Employees working from home are in principle subject to the same employment conditions as employees belonging to the same category who are not homeworking. Employees working from home should therefore perform the same hours as the employees of the same category working on the premises.
However, employees working from home are not subject to the working time regulations. This means that, although they should not perform more hours than their colleagues, they are not entitled to compensatory rest or to overtime pay.
Another difference is that the normal working time schedule does not apply to employees working from home. This means that if no agreement on working time was made, employees working from home can organise their working time themselves to a large extent, for instance, by starting the work day early in the morning in order to have part of the afternoon off. On the other hand, certain jobs require a presence between the traditional 9:00 to 17:00 business hours, in which case that the employee will have to carry out their workday in that time period.
Data protection, cyber security and privacy
Working from home creates challenges in terms of data protection. One the one hand are concerns around cyber security for the employer, while on the one hand exists the needs to protect the employee's privacy.
In terms of data protection and cyber security, working from home can entail additional risks, since the data that is normally processed within the secure office environment will be processed at the employee's home. Homeworking should not mean that the business is at greater risk of becoming the victim of a cyberattack. With clear agreements, the right materials and sufficient preventive measures, working at home online becomes as safe as working at the office. Some tips for the employer include:
- when possible, provide company computers or other devices to homeworking employees, rather than allowing them to conduct work using personal devices;
- make corporate business applications accessible only via encrypted communication channels (SSL VPN, IPSec VPN);
- ensure that these corporate computers/devices have up-to-date security software and security;
- ensure policies for responding to security incidents and personal data breaches are in place; and
- ensure that employees are appropriately informed of policies and trained in best practices.
Enisa, the EU agency for cybersecurity, has more tips on its website.
It is inherent to working from home that the employer has less control over the employee's workday. However, the employment contract will give the employer rights to exercise control over the employees. These rights need to be exercised carefully, as monitoring teleworkers quickly raises questions about privacy. For example, it is not possible for an employer to check employees who work from home with a webcam, and the employer would not be able to enter the employee's home without the employee's consent. Nor can they monitor the employees' online communications without observing the legal restrictions.
However, other control mechanisms exist. For example, employees may be asked to log into the company system at a certain time every day. Employees may also be asked to report at the beginning or at the end of the working day, detailing the work done or the time spent working.
Employers and employees have shown great flexibility over the past few months to ensure that business functions can continue to be performed by employees working from home. The challenge now for employers is to understand where homeworking can create risks or operational challenges, and what they can do to mitigate those risks and challenges.