Can I wear kurti for an interview?

Interview with Prof. Dr. Kurt Pärli

1. Entitlement

Our home office study with gfs.bern has shown that many employees have a positive view of this type of work. At Swisscom, more than 80% of those surveyed would like to work at least 50% of their workload from home. Can employees exercise a general right to work from home?

A general right to work from home cannot be derived from either the labor law or contract law. However, a right to home office can be contractually agreed. In addition to the individual employment relationship, claims to home office can also be anchored in collective employment contracts.

In the current coronavirus crisis, the Federal Council urgently recommends working from home whenever possible. This also does not lead to an individual right to work from home.

2. Cost

Who has to bear the costs for materials, tools and other expenses in the home office? The employees or the employer?

According to Art. 327 Paragraph 1 OR, employers have to equip employees with the devices and materials they need for work, unless otherwise agreed or customary. Art. 327 para. 2 OR sets out an appropriate claim for compensation if employees procure the equipment themselves. Article 327 of the Swiss Code of Obligations applies in particular to the acquisition and amortization of PCs / notebooks, printers and mobile phones.

Art. 327a OR regulates the reimbursement of expenses. According to Art. 327a Para. 1 OR, employers are obliged to reimburse employees for all costs necessarily incurred in carrying out the work. Art. 327a para. 2 OR allows a flat rate compensation. The “expenses” within the meaning of Art. 327a OR include the costs for the work space, electricity, heating, subscription and connection costs for Internet and telephone as well as maintenance and repair costs for the equipment.

If, as is often the case, the employee has a PC, a printer and a mobile phone available in the office in the case of a partial home office arrangement, the following applies to the use of these devices in the home office: If the employee has a notebook available and the employee works at home (even if authorized) on a private device, the employer is not entitled to reimbursement of costs. If, however, there is only a fixed PC in the office, then the employer must provide the employee with a device for use in the home office or contribute to the costs (within the meaning of Art. 327 Paragraphs 1 and 2 OR) . This also applies in the event that employees only have a landline connection in the office.

With regard to the involvement of employers, the Federal Supreme Court made an important decision in April 2019: If no permanent and suitable job is made available, the employer is entitled to financial participation in the rental costs.

The obligation to pay compensation is questionable if the employer grants home office at the employee's request. If the employees in the company have a job available at all times, the employers owe no compensation.

3. Health protection

In the home office, social contacts and ergonomics suffer, and employees in the home office struggle to switch off and relax. Who is responsible for health protection in the home office?

Working from home does not fundamentally change the employer's obligations to comply with the provisions of the labor law with regard to health protection. The contractual obligation to protect personal privacy (Art. 328 OR) and data protection (Art. 328b OR) also applies in the home office.

But how can health protection be checked in the home office? Should the employer come to my house to check?

That is a challenge. It is relatively easy to monitor compliance with the statutory maximum working hours and night and Sunday work bans. Working on the computer also leaves its mark in the home office. Since the employer has a duty to ensure that these regulations are complied with, she can and must monitor accordingly.

Controls by the employer (as well as the authorities) at home fail because of the right to privacy. But the employees are also obliged to follow the instructions of the employer i.S. Obey health protection, be it in the company or in the home office.

4. Working hours

In the home office, private life and work cannot always be clearly separated. This is stressful in the long run and can lead to health problems and failures. What does the labor law provide for the protection of employees? Does the working time also have to be recorded in the home office?

The relocation of the place of work from the company to the private home does not change the validity of the working time regulations; Night and Sunday work are prohibited or require a permit and the maximum working hours and rest periods apply without restriction. The working time must also be recorded in the home office and the employer has the right and the duty to arrange and control this accordingly.

In your opinion, do you need legislative amendments in the area of ​​working hours in order to better protect employees in the home office or to allow them to work more flexibly?

The labor law already offers space for special industries, professions and functions to find adapted solutions, I refer to the exceptions from the personal and operational scope as well as to the exceptions according to Ordinance 2 to the ArG.

In my opinion, special home office flexibilizations are not necessary and also not desirable. In the home office in particular, time limits are required so that work in the service of employers does not also conquer the employees' last reserves of freedom.

5. Privacy

Can the employer monitor me in the home office? Are systems like Microsoft Workplace Analytics or other analysis tools even allowed?

As in the company, the employer must also respect the legal restrictions on permissible monitoring in the home office. This concerns, on the one hand, Art. 26 of Ordinance 3 of the ArG; This provision prohibits pure behavioral monitoring and only permits monitoring for other reasons insofar as the monitoring does not impair the health of the employees. On the other hand, Art. 328b OR restricts the permissible processing of employee data by the employer (in the event of monitoring, personal data of employees are always processed). Furthermore, Art. 328b OR refers to the Data Protection Act (DSG) and thus also important data processing principles such as transparency, purpose limitation, data security and proportionality. None of these rules fundamentally prevent the use of analysis tools. However, such instruments are only permitted if and to the extent that the above-mentioned barriers to protect the employee's personality are complied with.

6. Trade unions and collective agreements

Where does the law fall short? What must be agreed in terms of social partnership in collective employment contracts or regulations?

A right to at least partial home office can and should be the subject of a basic regulation in a collective agreement; Concretizations at the company level make sense.

OR regulations on the bearing of costs also require further specification; this can certainly be done within the framework of a GAV. Solutions based on social partnership are a sensible way of dealing with the downsides of the home office, such as social isolation and the already mentioned delimitation between work and leisure / family time. Issues of permissible surveillance and health protection can also be addressed at the CLA level.

How can the trade unions' right to information also be ensured in the home office?

According to the Federal Supreme Court, trade unions are entitled to access to the company at least in the public law area and, after a considerable part of the apprenticeship, also in the private law area. If a large part of the workforce works permanently or frequently in the home office, such access must be made possible virtually, for example through the right to regular digital information events and through a right to advertising on digital “notice boards”.

7. Staff representation and participation

How can you ensure that employees in the home office are not excluded from operational involvement?

The internal cooperative bodies must and may also work in home office mode; elections for the composition of committees can also be organized via relevant platforms.

Do employee representatives have to be involved in the design of home offices? Where do you see the room for maneuver of staff representatives?

In any case, home office solutions work best where those mainly affected are involved in the decision-making process.

8. Home office from abroad

Can I do my home office from anywhere, including on the palm beach? What should you watch out for in this context?

The preliminary question is: What has been agreed with the employer or what does an instruction from the employer look like? As far as home office is permissible in this light, nothing speaks against it from an employment contract law perspective. However, there are delicate social security and tax law issues.

Thank you very much for the interview.

Miriam Berger, Central Secretary for the ICT Sector