New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Austria

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First, it should be noted that in the Austrian legal system a distinction must be made between remote working and working in a home office. While remote working regularly includes any work without a fixed workplace (eg, also in cafés and public premises) the work in a home office is limited to an employee's place of residence or at least that of one's partner. Only working in a home office is substantially regulated by law, while remote working can still be agreed largely without formalities and is "only" subject to general labour law norms.

The most important government measure in this sector is the Home Office Act, which came into force on 1 April 2021 in response to the covid-19 crisis and the corresponding working conditions. The Home Office Act adapts various existing laws and tightens the legal framework for home office employment. The relevant provisions include a legal definition of a home office, its direct tax implications, and fundamental legal requirements for working in a home office, such as the requirement of a written agreement between employer and employee. Therefore, a home office can neither be imposed unilaterally nor is there a legal entitlement at a statutory level for any worker to work from home.

The relevant legal provisions on home offices cover all genuine employment relationships that are based on a private law contract. Those are essentially characterised by the personal and economic dependence of the worker. It can be deduced from this definition that independent contractors are not covered by those provisions. They are essentially free to determine working hours and places and only owe their contractual partner the production of a result. Therefore, they can regularly decide independently where they choose to work.

From an Austrian point of view, "gig workers" are also ordinary employment relationships under social security law, which is why the above also applies to them.

Last updated on 21/09/2021

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United Kingdom

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The UK has, for some years now, had in place a formal system by which certain employees can request their employers to implement flexible-working arrangements: see UK government guidance here.

A request can only be made by an employee with 26 weeks’ continuous service (which, in general, means an unbroken period of service with the employer or a related entity), and can only be made once a year. The right does not extend to non-employee workers.

There is a statutory format for making a formal request. This mechanism has not changed or been updated in response to the pandemic but continues to apply as it did previously. The rules differ slightly in Northern Ireland from the rest of the UK.

In addition to the formal, statutory flexible-work request process, many employers have been implementing more informal flexible work policies and arrangements. There is no bar on employers doing so outside the formal statutory mechanism, but any informal arrangements do not remove an employee’s separate right under the legislation to make a formal request. 

Employers must not unlawfully discriminate against their employees and workers when handling remote-working requests (whether they are formal or informal requests) or when making remote-working arrangements: see UK government guidance here and here (for the grounds upon which discrimination is unlawful). There is also a duty to make reasonable adjustments for disabled workers: see here.  Where remote-working requests or arrangements are not handled reasonably and consistently, this could also ultimately trigger an “ordinary” unfair dismissal claim.

In response to the increased interest in homeworking during the pandemic, some UK government agencies and quasi-government agencies have issued guidance relevant to their particular fields of interest.

From 13 December 2021, office workers in England able to work from home should do so, unless necessary to attend the workplace physically. Different government guidance applies to different sectors: see here. Different guidelines apply in England, Scotland, Wales, and Northern Ireland.

The Advisory, Conciliation and Arbitration Service (ACAS), a quasi-governmental service that issues guidance relating to workplace matters, has published some recommendations for successfully implementing homeworking: see here. This guidance is not legally binding but is often relied upon by employers, unions, employees and other stakeholders.

ACAS has also published guidance on dealing with Covid-19 in the workplace: see here.

In the UK, businesses have a common law obligation to take reasonable steps to protect the health and safety of employees and other types of workers, including those based at home. Under the UK’s health & safety legislation, the Health and Safety at Work etc. Act 1974, employers also have specific legislative duties concerning employees (including home-based employees).

Under the UK’s health and safety legislation, the relevant watchdog – the Health & Safety Executive (HSE) – has also issued some guidance on how to safely implement homeworking arrangements: see here. Specific HSE guidance on keeping workplaces safe during the pandemic in light of current restrictions can be found here.

There are separate regulations that deal specifically with employees who are computer users (and which regulate the usage of computers, screens, and relevant furniture such as desks/chairs), and these again also apply to home-based workers. More guidance can be found from the HSE here.

Last updated on 13/01/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Austria

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The potential data protection risks associated with remote working are largely equivalent to those associated with working in a regular workplace, but are arguably even more prevalent.

A significant potential risk factor is the transfer of personal data if it is no longer securely stored on a company's servers. In addition, employers thereby transfer responsibility for the safekeeping and use of sensitive data to the worker. In doing so, employers have a significantly reduced ability to exert any influence. Nevertheless, companies are still generally regarded as being responsible for data protection within the meaning of the General Data Protection Regulation (GDPR), which creates a certain amount of friction.

It is also questionable whether a so-called privacy impact assessment must be carried out when working in a home office.

In principle, such an assessment must be conducted if data processing – especially when using new technologies – is likely to result in a high risk to the rights and freedoms of natural persons due to the nature, scope, circumstances, and purposes of the processing.

At present, it cannot be assumed that the threshold for the use of new technologies has already been exceeded in the context of remote working. In individual cases, however, it could amount to an "organisational solution" within the meaning of the GDPR, which also triggers the obligation of a privacy impact assessment by the data controller.

Insecure data connections that might not be constantly checked and maintained should also be considered. Another potential risk arises from it being easier for third parties to obtain access to sensitive data, whether it be persons in the same household or others at public places of work.

From a legal perspective, compliance with data security can also be adequately ensured for remote work, considering the GDPR and the corresponding national legal basis (Austrian Data Protection Act).

In home-office agreements, however, it is advisable to make further reference to data protection aspects. Here, companies should refer to the secure and data protection-compliant transport of sensitive hardware. Additionally, companies should take technical and organisational measures to ensure data security (eg, use of VPN, two-factor authentication with mobile phones, encryption of USB sticks, provision of a LAN network, requirements for secure storage of access data).

Last updated on 21/09/2021

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United Kingdom

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The key data protection risk associated with home working is data security.

In response to this, the UK’s data protection regulator – the Information Commissioner’s Office (ICO) – has issued guidance on the protection of personal data when working from home, using bring-your-own-device (BYOD) and working remotely (see: here).

The specific issues addressed include implementing appropriate workplace policies, IT security (including cloud-based storage security), the risk of theft and confidentiality.

Employers should update data protection policies to take account of remote working, in light of the ICO’s recommendations, and should also consider any data protection issues that may arise from an employee moving to work outside of the UK.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Austria

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Relevant here are first the restrictions on the employer's control of working time. Both the Working Time Act and the Rest Periods Act also apply to remote work and to work in a home office. However, section 26 paragraph 3 of the Working Time Act provides that in the case of work that is predominantly carried out in the home, only records of the duration (not the specific beginning and end) of the working time are to be kept. If the working hours are fixed, only deviations must be recorded.

The practical possibilities of monitoring work performance are manifold due to the IT tools that are now available (eg, log files, webcam). In contrast, in Austrian labour law, the employer's ability to control is subject to important restrictions. Control measures that affect human dignity require either the consent of the works council or – if such a council does not exist – the consent of the respective worker. Both attendance and performance or productivity controls can be relevant here. According to case law, the question of whether human dignity is affected must be assessed on a case-by-case basis. In addition to the employer's interest in monitoring, the way the monitoring is carried out is also decisive, so that the possibility of constant electronic monitoring (for example, by controlling keystrokes or screen duplication) certainly affects human dignity[1].

However, it is of course lawful to check the availability of employees during working hours.


[1] Huger in Huger (Hrsg), Home Office und mobiles Arbeiten [2021] Rechtliche Rahmenbedingungen.

Last updated on 21/09/2021

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United Kingdom

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Monitoring worker activity generally (whether remote-working or non-remote working) is possible but must be handled with caution and appropriate safeguards. As a general rule, employers are entitled to monitor worker activity to some extent, but they must undertake an impact assessment before doing so (which is an internal assessment of the impact of the proposed monitoring on data privacy), tell workers in advance about the monitoring and only monitor workers to the minimum extent reasonably feasible to achieve the employer’s goals.

The monitoring must be necessary, justified and proportionate. In other words, any monitoring must have a legal basis under GDPR for processing employee personal data in that manner (the legal basis may vary depending on the specific purpose of the monitoring), and the employer must also be able to demonstrate that: (a) the monitoring in question is a necessary and proportionate action to achieve a legitimate aim; and (b) that there is no less intrusive alternative way of achieving that purpose. There are also separate obligations in relation to data security and retention.

The more intrusive and extensive the monitoring, the greater the risk that employer monitoring may breach the UK’s data protection legislation, the Data Protection Act 2018 (and the UK’s implementation of the EU’s GDPR).

The ICO has previously published extensive guidance on how employers should implement a monitoring system. See here from page 58. This guidance was published before the pandemic, but is equally applicable. Recently, the ICO has also published specific guidance on monitoring employees using surveillance cameras, to check for compliance with pandemic health & safety obligations: see here.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Austria

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The basic obligation of employers to reimburse employees for expenses incurred on behalf of employers already results from general private law for all forms of remote working (more precisely: section 1014 of the General Civil Code).

However, the reimbursement of costs is more precisely defined for work in a home office. Employers are, in principle, obliged by law to provide home workers with the necessary digital work equipment. If an arrangement has been made by works agreement or individual agreement whereby the employee provides digital work equipment, which includes the necessary data connection, the employer shall pay the reasonable and necessary reimbursement of costs. To this extent, the employer is obliged by law to pay compensation.

This expense is to be borne by the employer, who may, however, pay a so-called home office allowance tax-free to the employee up to a limit of €300 and thereby, or by paying an appropriate lower amount, compensate the employee for expenses, including those resulting from increased internet or electricity consumption.

Last updated on 21/09/2021

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United Kingdom

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Unless provided for in an employment contract, in general there is no mandatory obligation on an employer to provide particular work equipment (save as part of its ongoing health and safety obligations, or in the context of making an adjustment for an employee with a disability), to pay a working-from-home allowance or to reimburse employees for costs associated with remote working.

Employees who have no choice but to work from home (including because of the pandemic) can claim tax relief on some utility expenses: see here for more guidance from HMRC (the UK’s tax authority). Similarly, an employee may be able to claim some tax relief for smaller items of equipment acquired by the employee for home working: see here.

Employees using work-supplied office equipment solely for work purposes (ie, not equipment owned by the employee, such as a work laptop) do not normally incur any tax liability in respect of the equipment: see here. There may be a charge if the employee is given or acquires the property from the employer: see here.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Austria

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Labour Law:

The essential issue regarding labour law is the question of which labour law should apply. Often, employers will want to apply a uniform labour law to all employees. However, this becomes impossible if in cross-border remote-working arrangements the labour law of the state of residence provides certain overriding mandatory rules and minimum standards (eg, in wage dumping and working time). Additionally, it may prove difficult for employers to keep track of the ever-changing legal landscape in various jurisdictions. Allowing for cross-border remote-working arrangements will oftentimes lead either to higher staffing requirements in the in-house legal department or increased recourse to local external partners. Both are associated with costs. There is also the question of work permits, depending on the applicable local law. 

Social Security Law:
 

While temporary covid-related work at home in other EU or EEA countries (and Switzerland) should not lead to any change in social security responsibilities, the corresponding provision in Austria was limited until 31 December 2021 and restricted to pandemic-related work at home. According to the information provided by the Austrian social insurance institution, covid-related work at home should not have any social insurance and tax law implications. Apart from an exceptional situation such as this, for workers who are working in more than one member state, working or earning more than 25% of the working time or remuneration in the country of residence leads to a change of the applicable social security regulations there. This is naturally associated with (sometimes) considerable administrative effort. The corresponding declarations must be made, and the payment of contributions must be ensured.

From the employer’s point of view, especially regarding accident insurance protection, it is important to note that the exact location of the remote workplace must be specified individually.

While insurance coverage in the home office is expressly clarified, the details concerning remote work in general are still controversial. These uncertainties are exacerbated in cross-border situations.

Tax Law:

If remote work is carried out across borders, this can have (potentially negative) effects on taxation. First, it must be considered that a domestic employer may employ workers who carry out their work both domestically and, for example, in a home office abroad. This may result in the establishment of a foreign permanent establishment through that home office. This would lead to a limited tax liability for the domestic employer abroad. A limited tax liability may also be accompanied by the obligation to deduct income tax via PAYE (pay as you earn). Since national legislation must be considered, this can lead to a considerable administrative effort.

In general, employees should not stay abroad for more than 183 days per year as otherwise they will be taxed in the country in which they are active. Finally, it must be considered whether there are taxation agreements between the countries and how these are structured.

Last updated on 31/01/2022

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United Kingdom

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Employees working remotely outside the UK may create expensive tax liabilities for themselves and their employers. It’s important to be aware of these before any long-term decisions are made.

The foreign country in which the employee is working may seek to tax some or all of that employee’s income from the employment. This is based either on the fact that a substantial number of days have been worked in that other country or in some cases on the basis that the employee has become a tax resident there under local law. Further, social security liability may accrue (which is generally assessed separately from income tax).

The main concerns for the employer will be whether there is an obligation to operate local payroll withholding and whether local social security rules add significantly to the wage bill. The rules vary widely between countries and, unfortunately, there is no “one size fits all” approach to managing this issue across multiple jurisdictions.

Employers will also need to consider the possibility that a UK employee working abroad may inadvertently create a “permanent establishment” of the UK employer in the other country, which in turn can expose part of the profits of the UK employer to corporate taxes in that other country. What constitutes a “permanent establishment” for corporate tax purposes in another country depends on the specific tax laws of that other country.

In practice, at a high level, most countries adopt a standard definition of a “permanent establishment”, which is derived from the OECD’s Model Tax Convention (being: (1) a fixed place of business in a country; or (2) a dependent agent, such as an employee, who acts on behalf of an employer and has, and habitually exercises, authority to conclude contracts in the name of the employer entity). This always needs to be checked on a case-by-case basis for the relevant countries involved. More information on the OECD convention can be found here.

Last updated on 25/11/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Austria

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Employers cannot unilaterally reduce employees' salaries because of remote work. A salary reduction is only possible either by mutual agreement or through a dismissal, with the option of re-employment on altered conditions.

Regarding benefits, we believe that a distinction must be made according to whether they were granted with working on office premises in mind and whether the employer has reserved a right to revoke them. In the latter case, employers may reduce or revoke benefits unilaterally. In addition, it can also be argued that, for example, meal vouchers for the company canteen are no longer issued and are not reimbursed. Such and other “social benefits by the company” can be limited to use at the company’s workplace.

Last updated on 21/09/2021

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United Kingdom

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No, unless they implement the reductions formally with the agreement of the employee or (if relevant) the union.

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee.

However, it is possible that such a reduction could be agreed between the parties as part of an agreement, for example, to permit the employee to work remotely on a permanent basis.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Austria

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Vaccination is not compulsory at present (but see below and question 10). Employers will not be able to force workers to have a covid-19 vaccination, as long as no corresponding legal basis has been established. However, the legal situation of workers who refuse vaccination has not yet been fully clarified.

Employers might struggle to comply with their duty of care if workers remain unvaccinated. Co-workers, but also customers, would be exposed to a greater risk of infection if workers are unwilling to get vaccinated. Moreover, the set-up of additional protective measures might lead to a considerable increase in costs the employer is unwilling to bear.

Therefore, the employer has two options:                                                                                                                                                                                                                                                                                                                      A transfer of the worker to another workplace with a reduced risk of infection (no contact with customers or co-workers) should be considered first. If the employment contract does not provide for a transfer of workers and the worker refuses to change his or her workplace, the employer could give notice of dismissal with the option of reemployment on altered conditions. Here, for example, a change in working conditions or a change in the place of work would constitute an adequate rearrangement.

However, a dismissal or a dismissal with the option of reemployment on altered terms may not be conditional on vaccination. Yet, if there is no such opportunity for employment, the worker might be legally dismissed as he or she has nowhere to work. The question here too is if the worker can provide other evidence to meet the requirement of a reduced incidence of infection. Besides vaccination, a negative test result or a confirmation of a Covid-19 recovery will serve this purpose.

On 19 November 2021, the government announced that Austria will be the first European country to introduce compulsory vaccination against covid for all people from February 2022. The draft law is in the legislative process. After the National Assembly (one part of the legislative body) gave its approval, the draft will now also be voted on in the Federal Council (the second body). Exceptions to the general obligation to vaccinate will only be possible for medical reasons. For example, religious reasons are not considered according to the draft law. Furthermore, compliance with the vaccination order is "only" ensured by imposing administrative fines for non-compliance.

By creating a corresponding legal basis for a general obligation to vaccinate, it is expected that the employer will be allowed to take action against employees who refuse vaccination. It is conceivable, for example, that the employment relationship could be terminated because the employee cannot be employed due to lack of vaccination and is therefore not ready for work. Nevertheless, the current draft does not bring any legal changes to the workplace for the time being. Here, the 3-G rule continues to apply.

Last updated on 31/01/2022

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United Kingdom

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In almost all cases, no, an employer could not issue such a requirement or mandate. However, this answer needs to be read in conjunction with the answer to question 9, below.

Absent specific legislation enabling them to do so, employers who attempt to force their staff to be vaccinated may face potential constructive dismissal claims, data protection issues, and discrimination allegations.

At the time of publication this issue remains a highly controversial one, producing significant public debate, and the legal position may change quickly.

Specific legislation dealing with this issue is very limited. In the care homes sector, regulations were made requiring staff to be vaccinated, with effect from 11 November 2021. There are limited exemptions, including on medical grounds and for emergencies. The government is exploring whether to extend this to all health and social care workers with face-to-face contact with patients and service users, unless they are exempt. On current proposals, this would be effective from 1 April 2022, but it is not yet binding law and faces substantial opposition.

The Government has stated that it has no current intention of making Covid-19 vaccination mandatory more generally, but this position needs to be monitored.

Without specific legislation, the general legal position in the UK is that an employer has a legal right to issue “lawful and reasonable” instructions to employees, which they are required to comply with. Although the position has not yet been tested before the UK’s courts and tribunals, it is unlikely that a generic requirement or mandate for employees to be vaccinated would meet this test.

There may be a case for making vaccines mandatory for specific workers undertaking specific activity in certain health-care-related roles; however, again in the absence of legislation the issue is not so much whether the employer can mandate vaccination as opposed to what steps the employer is entitled to take if an employee is not vaccinated. Even if a case could be made for requiring staff to be vaccinated, an employer would need to carefully consider issues relating to data protection and discrimination.

Finally, ACAS has issued recent guidance on supporting staff through the vaccination process: see here.

Last updated on 13/01/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Austria

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In exercising his domiciliary rights, it is up to the employer or entrepreneur to decide which persons he allows to access company premises. Therefore, the employer must also be allowed to demand appropriate proof of vaccination. This action is also justified if vaccination reduces the risk of infection with covid-19 for other workers.

However, a separate question to ask is whether an unvaccinated employee is entitled to remuneration during a lockout. This assessment is to be made on a case-by-case basis. Since there is no legal basis for compulsory vaccination at present, a balance of interests must be made here. Many aspects play a role when balancing the interests of the employer and individual workers. For example, if there is a home-office agreement with a white-collar worker, the employer may link the return to work to changed conditions and therefore to proof of a covid-19 vaccination. In the case of blue-collar workers (or white-collar workers without a home-office agreement), however, a lockout with retention of salary will not be justifiable. The legislature currently provides three options to prove that there is no infection. A negative test result, proof of vaccination and a confirmation of a covid-19 recovery (3-G proof) are suitable ways of providing evidence here. Employers are not entitled to unilaterally impose stricter conditions without objective justification and will need to accept all three options. Furthermore, one must also consider the individual situation of the worker. Some workers are simply unable to have vaccinations for health reasons. Therefore, if employers opened their business only to vaccinated workers, they might also have to pay workers who have been locked out, without receiving any work performance.

This could change with the introduction of compulsory vaccination. First, the general vaccination obligation will drastically shift a possible balance of interests. Once compulsory vaccination comes into force, continued payment of wages for unvaccinated employees no longer seems necessary in most cases. However, there will be exceptions, especially for persons who cannot be vaccinated for medical reasons. In addition, workers will continue to be able to invoke the 3-G rule for the time being – until a corresponding change is made. If this regulation is not adapted, it will continue to be possible to rely on the alternatives to vaccination (testing, recovery).

Last updated on 31/01/2022

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United Kingdom

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As indicated above in response to question 8, the position has not yet been tested before the UK’s courts and tribunals and remains the subject of vigorous public debate.

Many commentators have highlighted the potential risks of unfair dismissal and discrimination claims by employees against employers, as well as data privacy issues, if employers make entry to a workplace subject to vaccination. These issues are discussed below.

Insisting on vaccination as a requirement to return to a physical work location may lead to the following employment law risks:

  • if an employee believes the requirement is an unreasonable demand, it can trigger them bringing a “constructive” unfair dismissal claim if they refuse to comply with it and resign in protest, or an “ordinary” unfair dismissal claim if they refuse and are dismissed. As there has been no judicial consideration of this issue, we do not currently know in what circumstances such a requirement would be deemed unreasonable; and
  • if the requirement is a blanket requirement without exceptions, it can give rise to potential discrimination claims, the most obvious of which are as follows:
    • if the employer does not make reasonable adjustments for staff with health issues who cannot be vaccinated, it could trigger a potential disability discrimination claim;
       
    • if a staff member cannot comply with the requirement because of a religious or similar belief, it may give rise to an indirect discrimination claim for this reason; and
       
    • similarly, a blanket requirement could indirectly discriminate against younger staff as, at the time of writing, not all over 18s will have been offered both vaccinations. In this context, it should be kept in mind that the general position is that the UK’s age discrimination legislation does not just protect older workers or workers over a particular age (such as workers aged at least 40) but can extend to all age groups. The particular issue with younger staff and vaccines should improve by the end of September 2021 when the government has said that all adults will have been offered both doses. Employers can consider making adjustments to the policy (such as allowing regular testing instead of double vaccinations).

Assuming there is no specific legislation enabling an employer to do this, the risks of making entry to the workplace conditional on individual vaccination may be mitigated somewhat if:

  • there is a specific and strong justification for the requirement, rather than just a generic desire on the part of the employer, that other COVID-safe working practices cannot achieve. This justification should be supported by the outcome of a properly considered risk assessment;
  • steps are taken to mitigate the impact on employees who cannot, for health reasons, comply with the requirement; and
  • there is an alternative working arrangement available to those who do not, or cannot, comply with the requirement (such as continuing to work from home).

Where employers can objectively justify restricting access on the above basis, the risk of such a restriction being successfully challenged by an employee will be reduced. However, it must be emphasised that this issue remains wholly untested in the UK judicial system.

Some employers in the UK are introducing a hybrid vaccination or recent negative test (PCR or lateral flow/rapid antigen) requirement for entry into the workplace. By providing an alternative to vaccination, this approach may reduce the risk of claims for unfair dismissal or discrimination. It does not lessen the data protection issues and employers should ensure they are complying with their data protection obligations. As with a vaccination-only policy such a hybrid policy is wholly untested in the UK judicial system.

There is a further, ancillary issue, relating to data protection. The ICO has issued guidance essentially to the effect that although employers may undertake spot-checks of employee vaccination status, in most cases it is far less likely to be justifiable for employers to retain a record of any employee’s vaccination status: see question 11 below, and also see here.  

Last updated on 13/01/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Austria

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In principle, there is already the legal possibility to impose vaccinations for certain professions in the health sector. However, this option has not been exercised yet. There is no legal basis for compulsory vaccination in most sectors.

Workers may choose from three options (3-G rule) when they want to enter their employer’s premises. As of now, there is no regulation stipulating an entry requirement to the workplace for vaccinated workers. However, employers may only tighten access restrictions in substantiated cases. Individuals who are not employees may be subject to stricter conditions (proof of vaccination) as a result of the employer’s right of domicile.

Last updated on 31/01/2022

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United Kingdom

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Yes.

The UK Department of Health and Social Care recently amended applicable regulations (the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014) to make it mandatory for all care home workers and other visiting professionals to be fully vaccinated against Covid-19 unless they have an exemption or there is an emergency. The changes took effect from 11 November 2021. Proposals to extend this to all health and social care workers with face-to-face contact with patients and service users are currently being discussed by the UK government. If passed in their current form this expanded vaccine requirement would be effective from 1 April 2022.

Last updated on 13/01/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Austria

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It is the opinion of the data protection authority that a targeted question about an employee’s vaccination status is not covered by the legal framework, as two other equivalent methods are currently provided to prove a low epidemiological risk at the workplace (3-G rule).

In practice, however, it will be possible for employers to leave it up to employees to disclose their vaccination status of their own accord.

Employers are currently only allowed to randomly check whether workers have been vaccinated, have recovered from COVID-19 or have been tested. The underlying regulation does not create a legal basis for maintaining data and prohibits the unilateral retention of personal data. Best practice has been to leave it up to employees to actively disclose their status to employers.

There are no specific record-keeping requirements. Due to the law, personal data may not be maintained and employees must actively disclose their status and consent to its retention. Personal data may only be stored for as long as it is necessary. Furthermore, the processing of personal data must always be limited to the necessary extent (data minimisation). The general obligations of the GDPR must also be complied with.

Last updated on 31/01/2022

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United Kingdom

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Information about a person’s vaccination status is special category personal data for the purposes of the GDPR. It represents part of their personal health record and is afforded additional protections under data protection law.

An employer should only seek to process such data if it has a lawful basis for doing so under the UK’s implementation of the GDPR and the Data Protection Act 2018. In particular, there are limited lawful reasons for processing special category data such as health records.

It is beyond the scope of this Q&A answer to provide a detailed analysis of the potentially lawful bases for processing the special category data of employees, but general guidance can be found from the ICO – see here.

For these purposes, processing means:

  • checking an employee’s vaccine status digitally (e.g., by scanning a QR code);
  • checking an employee’s vaccine status manually and retaining any data from any such check in any form; or
  • any subsequent usage of the data after it has been checked digitally or manually and recorded.

Employers should be aware that the ICO has issued specific guidance on processing employee vaccine status data. Essentially, this guidance is that although employers may undertake spot-checks of employee vaccination status, there will be significantly fewer cases where it would it be justifiable for employers to retain a record of any employee’s vaccination status: see the ICO’s position on this as follows (quotes taken from the ICO here; emphasis has been added by us):

Does the UK GDPR apply if I decide to check people’s COVID status?

If you are only conducting a visual check of COVID Passes (either a hard-copy document or a pass held on a digital device) and do not retain any personal data from it, this would not constitute ‘processing’ personal data. The activity would therefore fall outside of the UK GDPR’s scope.

However, if you are conducting checks digitally (for example, by scanning the QR code displayed on the pass), this would constitute processing of personal data – even if you do not keep a record of it. The UK GDPR would therefore apply.

If you make a record of any personal data, whether you conduct visual or digital checks, then you would be processing personal data and the UK GDPR would apply.

Can I record information about my employees’ vaccine status?

Your reason for recording your employees’ vaccination status must be clear and necessary. If you cannot specify your use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it….

Last updated on 13/01/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Austria

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Any regulations concerning the general protection of workers apply to teleworkers as well. Only workplace-related regulations do not apply here. Thus, an employer's duty of care does not end at the worker’s front door when the worker performs their work from home. In Austria, several large companies produce videos for their workers showing the ideal design of a teleworking workplace. They use these videos to support their workers to set up their teleworking workplace properly. In some cases, workers are even offered the opportunity to film their workplace and send the video to the employer. Experts then assess whether the workplace meets occupational health and safety requirements.

Last updated on 21/09/2021

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Employers have an ongoing legal duty to maintain a safe working place and environment. Responsibility for health and safety at work rests with the employer, whether or not that work is being done at the worker’s home. To comply with this duty, employers must conduct a risk assessment of the employee’s place of work; this includes when they are working from home.

Under the UK’s health and safety legislation, the HSE has issued guidance on how to safely implement homeworking arrangements: see here

In undertaking a risk assessment, employers should consider the following (non-exhaustive) factors:

  • whether the employee is aware of any specific risks regarding working from home;
  • whether the work activity and the proposed workspace are suitable;
  • whether the employee has suitable equipment to enable the work to be done and, if not, who will provide this; and
  • what the supervision or work contact arrangements for the employee will be.

The assessment can be done by the employee where they are working remotely but the employer will need to ensure it is actually completed, recorded, and periodically reviewed. Issues that arise from the risk assessment must be appropriately addressed.

There are separate regulations that deal specifically with employees who are computer users (and which regulate the usage of computers, screens, and relevant furniture such as desks and chairs), and these again also apply to home-based workers. More guidance can be found from the HSE here. The guidance includes a checklist for working with display screen equipment that employers can use: see here.

Last updated on 13/01/2022

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Austria

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Employers' duty of care requires supervision of employees in terms of occupational health and safety and work ergonomics, even during teleworking. This was hardly dealt with before covid.

Last updated on 21/09/2021

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United Kingdom

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The pandemic has not directly impacted employers’ obligations beyond the physical workplace from a health and safety perspective, as the legal duties and responsibilities that apply to employers predate the pandemic. The difference is that these issues have assumed a higher level of attention due to the wholesale adoption of remote working as a result of the pandemic.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Austria

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No. Regarding employers’ obligations on health and safety measures, the same rules apply to mobile workers and workers based primarily at home.

Last updated on 21/09/2021

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United Kingdom

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Not generally, except for:

  • different types of mobile workers (as opposed to home workers) may have specific needs or use different equipment, either temporarily or on an ongoing basis (in which case, the overarching health & safety principles remain the same but the application may differ); and
  • particular categories of mobile workers (for example, long-distance drivers) who may have the benefit of specific protections when it comes to working hours and rest breaks.
Last updated on 13/01/2022

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Austria

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An employer's duty of care also includes looking after the mental health and well-being of employees who work from home. However, their duties are of course limited only to those aspects that arise from the work performance itself (hence no private factors). However, neither employers nor representatives of the labour inspectorate may enter a worker’s home. Therefore, employers are unable to examine working conditions during teleworking. Nevertheless, employers are still expected to ask their workers about their state of health and offer support. As mentioned above, some employers offer their employees creative solutions. However, the prerequisite is always that employees voluntarily cooperate with the measures if his or her home is affected.

Last updated on 21/09/2021

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United Kingdom

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When it comes to protecting the mental health and wellbeing of workers, employers owe the same duties to employees who are working remotely as to those who are not.  Employers have a duty to maintain a safe working environment, both in the workplace and when working remotely. 

The HSE has issued guidance on mental health issues in the workplace generally – see here – and stress has also been identified as an issue that may particularly affect home workers (see here).

ACAS has also issued guidance on managing the mental health of workers during the pandemic: see here.

Last updated on 13/01/2022

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Austria

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Regarding changes in the organisational structure itself, large employers, in particular, are relying heavily on home offices and are already planning for a time after the pandemic. Desk-sharing models are increasing0 being considered and actively implemented. This is accompanied by a (partial) return of leased property. In the internal organisation, there is a noticeable departure from rigid hierarchies and a shift towards increased network thinking, in which decision-making processes take place jointly using digital work equipment.

The government and legislature have been very careful to minimise layoffs as much as possible and at least to counteract pandemic-related redundancies. This was achieved, on the one hand, through direct support of the economy in the form of aid packages (compensation for loss of sales, subsidies for monthly fixed costs, etc) and, on the other hand, through the widespread use of short-time work, which was largely financed through state aid. The short-time work subsidy is accompanied by a retention obligation placed on employers, so that there have been relatively few redundancies during the pandemic so far, as the companies have accepted this aid well.

 
Last updated on 21/09/2021

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United Kingdom

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There has been no change to underlying employment legislation or rights relating to redundancies.

In theory, any unilateral suspension from duties, reduction in hours and/or any reduction in pay by an employer, without employee or union agreement (or a pre-existing employer right to make such changes), can be challenged by the employee or a relevant union. Such a challenge would most likely be by way of a breach of contract claim, an unlawful deduction of wages claim, and/or a claim of constructive dismissal (by the employee) or some form of industrial dispute (by a union). In practice, with the alternative to such action often being outright redundancy, legal claims by affected employees or unions have been relatively rare.

There are no special restrictions on employers being able to implement redundancies, in line with existing laws and subject to the usual safeguards of employees’ rights.

In early 2020, the UK government introduced a paid furlough scheme – called the Coronavirus Job Retention Scheme (CJRS) – allowing employers temporarily to suspend employees from work but still receive payment of part of their wages (supported by a government allowance to the employer). The scheme has now closed (it ended on 30 September 2021). Details of the scheme (now of historic relevance only) can be found here.

Last updated on 13/01/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Austria

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Austria benefits from its system of "social partnership", which is characterised by cooperation between employers' and employees' interest groups and with the government. Due to long negotiations between the social partners in the run-up to the Home Office Act, workers’ rights were safeguarded before the amendment was implemented.

Last updated on 21/09/2021

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United Kingdom

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There has not been any coordinated, general union campaign dealing with protecting employee entitlements and remote-worker rights.

The Trades Union Congress (TUC), which is an umbrella body representing 48 member unions, has published pandemic guidance for unions: see here.

Individual unions have also published commentaries on this issue from time to time.

Last updated on 13/01/2022

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Austria

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Especially regarding home office work, the Austrian legislature has clarified that such work requires an agreement between employer and employee.  At the same time, however, the legal possibility was established to determine framework conditions under which home working can take place within a company through a works agreement. At this level, employee representatives (the works council) can therefore help to shape the implementation of remote working. However, the conclusion of such a works agreement is voluntary and cannot be enforced. Nevertheless, employers should inform the works council before introducing home working, as the works council has a general right to information, which in our opinion also includes the introduction of remote working.

In addition, various collective agreements for entire industries also lay down framework conditions for teleworking, although their implementation also requires an agreement between employer and employee.

Employee protection in the context of mobile working is already guaranteed by the fact that relevant worker protection laws also apply to remote work in their essential provisions. In practice, works agreements regularly provide for employers to undertake a workplace evaluation to ensure the health and safety of its employees.

Last updated on 21/09/2021

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United Kingdom

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Union activity in UK workforces is lower than in many other countries.

There is no legal obligation to consult a union about introducing a remote-working arrangement, unless there is a collective bargaining agreement in place that imposes such a requirement, or the employer habitually consults a relevant union about this.

Last updated on 25/11/2021