It is safe to state that working from a home office or teleworking has never been as common in Estonia as it is now that the COVID-19 global pandemic has forced many employers to reorganise their work systems since the spring of 2020. The purpose of that has been to avoid workplace infection cases. However, working from a home office is possible for only those whose nature of work allows to work from home. This means primarily employees who work with a computer.
Actually, working from a home office was popular in Estonia already before the COVID-19 pandemic in spring. Regardless of this the Employment Contracts Act (töölepingu seadus, TLS) has so far not been amended in such a manner that would regulate working from a home office more thoroughly at the statutory level and that would provide the parties to the employment relationship with specific guidance on entry into an agreement on working from a home office. TLS only defines teleworking as performance of duties outside the place of performance of the work (including at the employee’s place of residence), which is usually done in the employer’s enterprise/seat, and includes this in the notification obligations of the employer concerning working conditions.
Neither party can unilaterally demand that the employee perform the duties at home, this can occur only by agreement of the parties. It is also impossible to unilaterally change an agreement on working from a home office already entered into, i.e. neither party can demand that the employee begin to perform the duties at the seat of the employer from a certain moment.
In the case of working from a home office it is common that the employee must perform the duties at the seat of the employer or a client of the employer from time to time, for example participate in meetings and client appointments. For the sake of clarity, it is reasonable to agree in writing as clearly and precisely as possible on where and when the employee is required to perform the duties. This helps to avoid labour disputes in the case of which the parties have agreed on several other places of performance of the work in addition to working from a home office but have failed to otherwise specify the agreement on the place of performance of the work. This in turn has led to a situation where the court has had to establish the intentions of the parties for the specification of the circumstances concerning the place of performance of the work (e.g. time structure) on the basis of other evidence (Judgement of Tallinn Circuit Court of 25.04.2019 No. 2-17-13912), however, this may become unfavourable for one of the parties to the employment relationship.
At the same time, it must be noted that changing the place of performance of the work from the seat of the employer to the home of the employee shall not change an important feature of the employment relationship according to which the employee is performing the duties under the control and management of the employer. Giving orders to and verifying the performance of work by an employee working from a home office may significantly differ from the usual and thus the employer should analyse the situation before entry into an agreement. For example, it may become evident that the employer is currently unable, in terms of technology, time or money, to check the person working from a home office or give orders to such person. In this case, the employer can eliminate the specified deficiencies by the time of entry into an agreement to ensure the smooth running of working from a home office to both parties to the employment relationship. Upon entry into an agreement on teleworking, anything relating to working from a home office should be fixed in writing, including the manner and procedure of checking the employee and assigning the duties (e.g. in the internal procedure rules communicated to the employee).
The employers are not obliged in Estonia to enable working from a home office in relation to the COVID-19 pandemic, however, an employer must definitely consider this option, taking into account the requirements of the Occupational Health and Safety Act (ensure a safe working environment) and the Equal Treatment Act (e.g. provide the parent of a child doing remote learning with the opportunity to work from home).
Working from a home office shall not change the fact concerning the employment relationship that the employer is responsible for the compliance with the occupational health and safety requirements in the case of an agreement on working from a home office. Such requirements and the possibility of compliance therewith shall be addressed by the legal advisers of Leinonen in the next article.
