The home office from a labour law perspective
The Hungarian government is committed to taking steps not yet experienced in Hungary to curb the spread of the coronavirus: the first step was the announcement of the emergency order on 11 March which has been followed by other measures on 16 March. Unlike many European countries, Hungary does not yet have a full quarantine, but whoever can do it is already working from home. In this newsletter, we will examine the labour law framework and consequences of this latter institution, the home office.
Hungarian Act I of 2012 on the Labour Code (hence: “Labour Code”) does not contain the expression “home office”, but of course this does not mean that there is no appropriate labour law background: Section 53 of the Labour Code discusses the rules of employing an employee at a different place than it has written in his labour contract.
Under that provision, the employer is entitled to employ the employee temporarily at a place other than the employment contract. From this wording, two things follow: firstly, that this is not the result of a joint decision, the employer can unilaterally make such a decision (but not in every case, see below), and secondly, that the employee – at least according to the wording of the Labour Code – cannot decide alone (i.e. without the consent of his employer) to stay home.
Under normal circumstances, the home office is a benefit to employees, and most employers see it as a form of fringe benefit. The Labour Code did not primarily seek to regulate home office in the aforementioned statute, but for example cases, where an employer who is otherwise based in Budapest is temporarily transferred by his employer to the company’s Debrecen site. As a result, this institution, too, has its limitations, precisely for the protection of the employee.
On the one hand, this type of employment may not exceed 44 working days (or 352 working hours) in one calendar year. An important addition is that this should be applied proportionately, meaning that anyone who joined to a given company after 1 January could be sent to work at a place other than the employment contract proportionally less.
On the other hand, as mentioned above, the employer cannot make unrestricted decisions on all his employees, in some cases the employee’s consent is also required (e.g. in the case of women from pregnancy until the child reaches the age of three, or if someone is caring for an ill relative permanently). In the present situation, however, this clause is obviously irrelevant.
The employer is required to inform the employee of the expected duration of the unilaterally ordered home office (as a rule, with a specific end date, which is clearly not possible in the present situation). Although this is optional, it is also worthwhile to specify the employee’s working schedule and working hours (e.g. the work routine should be as it was prior to March 10 in the normal course of business). The legislator leaves it to the parties to draw up the work schedule, for example the employer may require the employee to attend a joint “start-up” Skype meeting at 9 a.m. on each working day, but the employee could organize the rest of the day by himself (assuming that he completes the work entrusted to him on time).
Another important condition is that the employment in a different workplace must not be to the detriment of the employee’s financial life: he remains entitled to a basic salary under his employment contract. Closely related to this are the provisions of Article 51 (1) and (2) of the Labour Code, which stipulate that the employer is obliged to provide the employee with the conditions necessary for the work and to reimburse the expenses reasonably incurred in the performance of the employment relationship. In addition to providing a company laptop, if an employee without a company phone should make a business phone call from his own (mobile) phone, the employer is required to reimburse him the costs.
In the current epidemiological situation, it may be reassuring that labour law as a branch of law is quite flexible, so that the parties may deviate from the above by a mutual agreement (except for cases of cost reimbursement, and the now less relevant cases of pregnancy and ill relatives). In other words, if due to the epidemic more than 44 working days in home office are required, the Labour Code does not create a legal barrier between the parties to extend this period, however, unilateral ordering of this from the employer’s side is not legal, the parties must mutually agree on this.
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As you can see, the rules of monthly / weekly home office opportunities that have already been used by many companies cannot be transposed to the current situation. If you have any questions regarding this newsletter, please do not hesitate to contact us: VGD Hungary’s tax advisory team will be happy to help.
