Remote working in the technological age

This in turn can benefit employers through higher productivity and better employee motivation. Employers also benefit from reduced costs for office space and other operating costs. And remote working is popular with workers: according to Statista, the percentage of permanent remote workers (excluding temporary remote working during lockdowns or other restrictive measures) has risen sharply, from 10%, 13% and 20% in 2019, 2020 and 2021, respectively, to 28% by 2023. However, not all that glitters is gold. Employee isolation, difficulties in teamwork, and the loss of corporate culture are potential disadvantages. A lack of informal dialogue and spontaneous interactions can also arguably affect productivity and creativity in the long term. On a more general note, remote working may involve a wide variety of risks connected to individual employment rights, health & safety and data protection.

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In many countries, there is no legal entitlement to remote working. Germany is one example. The German legal framework around remote working depends mainly on individual agreements (i.e. supplementary employment agreements) and works agreements concluded with the employer’s works council. The employer’s general right to issue instructions allows it to determine the place of work as long as no specific agreements restrict this right. Employers can revoke remote working at their reasonable discretion (although in practice, exceptions to this general rule are often included in individual agreements). Agreements on remote working must be carefully scrutinised to ensure than any provision for termination or adjustment complies with the law. This can be done by means of time limits, cancellation clauses and notices of termination, among other mechanisms. After an agreement is executed, a mutually agreed change to the terms is possible, but can often only be achieved through incentives and higher pay. In employers with a works council, co-determination rights must be observed, particularly when drafting works agreements on remote working. The renegotiation of those agreements can also restrict the employer’s room to manoeuvre. Practices and procedures to effectively face these risks and challenges may include:

• Clear rules and agreements (individual or collective) on remote work regulating aspects such as working hours, availability and who will bear the costs for home office equipment.
• Transparent communication informing employees about any reasons for and benefits of working from the office. The employer may also wish to take measures to incentivise work in the office (e.g. by providing free parking spaces or covering public transport costs).
• Flexibility and customised solutions that meet the needs of employees and the operational requirements of the employer (e.g. using hybrid models alternating between remote working and office presence). At present, solutions such as three/two days of office work and two/three days of remote working per week seem to be gaining ground in many cases.
• Support in setting up a home office and training on topics such as time management and digital collaboration.
• Promoting teamwork by organising regular team events or joint activities.

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According to a recent analysis by Eurofunds, remote working and flexibility are generally linked to an increase in working hours. Over 80% of the employees interviewed reported receiving work-related communications outside their contractual working hours during a typical working week and almost 90% of those workers responded to these communications, with 25% replying to all calls and messages received outside their normal working hours. It is clear that the issue is not only a matter of the number of hours worked; rather, it is the fact that employees working remotely tend to not to be able to set clear boundaries between working time and free time. This not only has a negative effect on work-life balance, but may also impact employees’ wellbeing and health, causing problems such as burnout and emotional breakdown. The need to guarantee employees the right to have a real and actual rest, and thus prevent such issues, prompted the European Parliament’s January 2021 resolution calling on the European Commission to bring forward a regulation on the right to disconnect. As of today, no European directive has been issued, but more and more countries (not just in Europe, but across the world) are adopting specific regulations on the right to disconnect. Even where no regulation exists, an increasing number of employers are choosing to implement their own internal policies.

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From a data protection point of view, the three main challenges involved in remote work are:

• How to monitor employees’ performance remotely and ensure performance effectiveness;
• How to deal with a higher volume of data; and
• How to ensure the appropriate data security measures are in place.

Allowing employees to work from different places would be impossible without IT tools (e.g. direct messaging chats, videoconference systems and connected calendars). These tools can include functionalities that allow employers to monitor employee performance in a way that is even more effective and extensive than the traditional ‘faceto-face’ means. Employers are able to employ specific performance management software to monitor factors such as presence, keystrokes and mouse clicks. While this sort of monitoring may sound attractive to employers, it comes with risks. One recent example is the fine issued against Amazon by the data protection authorities in France for excessive monitoring of its employees. Remote working has made it easier for employers to monitor employee performance monitoring using software, but any such process must be carefully considered in line with data privacy laws. Moreover, since remote work largely involves communication online, rather than face to face, more data is generated. This can cause headaches for employers faced with data subject access requests from employees. Sensitive conversations that would have been done in person are now in writing and easily searchable. Thus, employers now need to contend with vast volumes of communications between employees, which means that they also need to consider retention periods for this data and how best to deal with it in response to requests. Remote working inevitably means that employers have less control over the physical location of their data and over how IT equipment is treated. Data laws commonly require employers to effectively evaluate security risks and introduce appropriate measures to ensure the safety of data processing. This means implementing IT tools in a way that respects data protection principles and rights from the beginning (socalled privacy by design) and throughout the employment relationship. It is also crucial to deliver to employees complete and clear policies and privacy notices, ensuring that they understand the steps they need to take to protect data (e.g. strong passwords and encryption) and what they need to do in the event of a data breach.