In previous editions of our newsletter, we informed you about some of the new features introduced by the amendment to the Labour Code. It has been less than two months since it came into force. A number of issues that were initially considered controversial in theory have proved to be easily solvable in practice. On the other hand, we were surprised by the complexity of some other problems that our clients turned to us with. In this article, we would like to share with you our findings after two months living with the amendment, which is one of the most significant changes to employment law in recent years.
The main objective of the amendment was to extend the employer's information obligation for employment contracts and agreements on work outside the employment relationship. It is therefore not surprising that this is the area where we have seen the most uncertainty.
First, there is the employer's information obligation after the establishment of the employment relationship or an agreement for work outside employment (Art. 37 of the Labour Code). The amendment brought an avalanche of requests for new model documents in this respect, although in many cases the new administration was not necessary at all. Thus, we have continued to help some clients revise existing model employment contracts or agreements and evaluated that there is no need to introduce new ones. This is particularly the case for white-collar positions, where it is customary for all arrangements between the parties to be negotiated directly in the contract and thus there is no need to comply with an information obligation[1].
Surprisingly, however, the most problematic by far is notifying the work schedule in the case of agreements on work performed outside of an employment relationship (Art. 74 (2) of the Labour Code). We usually recommend to clients that they keep the information obligation in the agreements (and of course comply with it), but at the same time shorten the period for familiarisation to a reasonable time (a day or at least an evening before).
In certain circumstances, however, it is conceivable that the parties will agree, and the employer will not prepare an individual schedule at all. This may be the case, for example, where the employer does not care on which days or at what specific times the employee performs their work. For example, the employer may only stipulate that the work is not to be carried out at night. It is clear from the explanatory memorandum that the legislator was guided by the desire to increase the predictability of agreements on work performed outside of employment. If this purpose is maintained, the formalism of shift planning can also be mitigated.
On the other hand, the new telework arrangements have proved very successful. Most employers provide work from home as a benefit. A very welcome change was therefore the possibility to agree with employees that no compensation for wear and tear on any own equipment or energy consumption would be provided for teleworking. Employers also have no difficulty in concluding (written) telework agreements.
Nevertheless, in line with the pre-amendment situation, we continue to recommend that the core telework regulation be contained in the internal regulations to which the agreement refers. This will preserve the employer's broad discretion to decide unilaterally on changes even without the employee's consent[2].
For the sake of completeness, we would like to remind you that some parts of the amendment will only become effective with the start of the new calendar year. This particularly concerns the holidays of employees working under agreements outside employment, but also other topics. However, we will leave this for the next edition of the newsletter. If you are interested in any of the topics before then, we would be happy to hear from you via the contacts below.
Filip Lukačovič Adam Hussein
filip.lukacovic@bdolegal.cz adam.hussein@bdolegal.cz
[1] In this context, cf. the first sentence of Section 37(1). "[i]f the employment contract does not contain these data, the employer is obliged to inform the [...]"). See, for example, Section 37(1)(d) in conjunction with Section 35 of the Labour Code – the probationary period may be agreed upon only in writing, the regulation is usually contained directly in the employment contract; in accordance with the wording of the provision introducing information obligations, in the vast majority of cases there will be no need to inform about the probationary period.
[2] Such conditions may include the scheduling of working hours and notification of the schedule, requirements for the handling of entrusted IT equipment, or requirements for the actual place of work, including necessary security measures.