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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Belgium

  • at Van Olmen & Wynant

For several periods during the pandemic, the government strongly recommended remote work or even made it mandatory, except for where remote work was not possible. The requirement to perform remote work was lifted on 27 June 2021. However, a fourth wave of infection in November 2021, caused the government to introduce a new obligation for workers to perform remote work at least four days a week. Employers have to register who in their workforce is capable or not capable of doing remote work through an online social security platform (used by the social inspection to enforce the obligation).

Belgium already recognised three legal systems for remote work or “teleworking”. There is the system for homeworking (the oldest form of teleworking without the use of technology); since 2005, the system for structural teleworking (for more permanent forms of remote work) based on the European Framework Agreement on teleworking of 2002; and since 2017, the system for occasional teleworking (eg, for situations of force majeure). When the government made remote work mandatory during the pandemic, it was unclear which system would apply to this “corona-teleworking”.

Aiming to bring an end to the discussions and to provide a general framework, the national social partners concluded Collective Bargaining Agreement (CBA) No. 149 regarding recommended or compulsory teleworking caused by the coronavirus crisis on 26 January 2021, which applies to the private sector. However, this CBA did not bring any clarity on the discussion regarding the applicable teleworking system during the pandemic, given that it only applies to organisations that had not yet implemented one of the existing teleworking systems. The other systems for teleworking, therefore, still apply to this situation in some organisations. Independent contractors and gig workers (as far as they can be considered self-employed) do not fall under the scope of this CBA. However, self-employed workers are also forbidden from workplaces if they can work remotely (except for one day a week).

Last updated on 25/01/2022

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Employees who process data at home could create a data leak when they lose the data or improperly dispose of it after it is no longer useful for the company. It is also more difficult to protect digital data in a non-professional setting and a private network might be more vulnerable to breaches.

Article 9.3 of CBA No. 149 states that company data used and processed by teleworkers for professional purposes must be protected. Employers should inform teleworkers of the company's rules on data protection and, in particular, the restrictions and penalties for the misuse of IT equipment and tools. Considering this, it is strongly recommended for companies to draft and implement an IT policy.

Also, employees’ personal data could be at risk since teleworking often means a direct insight into the personal life of the employee, using remote-monitoring devices. Such devices or software could register data that is not purely linked to their work and might possibly breach several GDPR principles, such as data minimisation.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Articles 9.1 and 9.2 of CBA No. 149 state that employers may monitor the results or performance of employees appropriately and proportionately. Teleworkers must be informed of how such monitoring is carried out. If employers want to monitor the e-mail or internet activity of employees, they will have to follow the specific procedure laid down in CBA No. 81 for the protection of the privacy of employees, concerning the monitoring of electronic online communication data.

In addition, CBA No. 68 regulates the use of cameras in the workplace. Under this CBA, it is only permissible to use cameras to pursue a limited amount of objectives, including the control of the employee’s work. Yet, for this objective, only temporary monitoring activities are permitted. In any case, a proportionality test is necessary. It will never be proportionate to request that remote workers be permanently recorded by a camera in their homes. However, simply asking them to turn their webcam on during a meeting is not covered by CBA No. 68 and should be possible.

It is also possible to make arrangements with employees regarding the periods during which they need, and do not need, to be contactable by the employer (article 11.3 CBA No. 149).

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Article 7 CBA No. 149 states that employers need to arrange with employees on the provision of work equipment and reimbursement of costs related to remote work (use of a private computer, internet, electricity and gas etc). However, this provision does not include an obligation for employers to provide equipment or to reimburse these costs; it is also possible that there is no such compensation. Nonetheless, reimbursement of these costs is an attractive compensation tool for employers, as they are excluded from income tax or social security contributions (up to a certain limit).

Only a limited group of employees who fall under the homeworking system are entitled by law (article 119.6 Employment Contract Act) to remuneration of 10% of their salary to reimburse costs related to homework.

If an employee cannot work remotely because their employer refuses to provide a laptop (which an employee might not have), it could become impossible for that employee to work, which could be considered a breach of contractual and legal obligations by their employer.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

There are many issues at stake, as the foreign states could apply their public order labour law provisions, require a work visa, apply their social security scheme (and contributions) and their income tax obligations. This usually depends on whether these states are part of the EU or EEA (or if they have bilateral treaties with Belgium) and the duration of the cross-border work; if it lasts long enough to lose its temporary nature, the full scope of the foreign legal system may become applicable.

For foreign nationals coming to Belgium, Belgium will apply almost all of its labour law provisions immediately to the remote worker, except for rules concerning the conclusion and termination of employment contracts, including non-compete clauses laid down in the Employment Contracts Act. After 12 months, rules concerning the general obligations of employers and employees, the liability of employers for the actions of their employees and the suspension of employment contracts will also apply.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

In general, this would be considered a unilateral modification of the employment contract, which can be seen as an irregular termination of the employment contract by the employer, who will have to pay in lieu of notice if an employee claims this. However, the employer will no longer have to pay any agreed commuting expenses (but if the employer pays for a public transport subscription, this would just continue).

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Although there is an ongoing discussion, the majority of the legal community believes that employers cannot force employees to get the covid-19 vaccine. This opinion is shared by the Federal Public Service of Work, the Belgian Data Protection Authority and the Federal Anti-discrimination Institute (Unia). If there is no legal basis for this obligation, employers seriously risk a violation of the privacy rules of the GDPR and the anti-discrimination Act of 2007 (discrimination based on health status).

Certain voices in the legal community state that an employer could make vaccination mandatory based on an obligation to create a safe and healthy working environment, but this legal basis does not seem specific enough to effectively remove the risks. For now, the Belgian government does not appear eager to create a legal basis for mandatory vaccination, but this could change in the future.

However, the government did reach an agreement regarding the mandatory vaccination of healthcare personnel (which will enter into force in 2022). For now, the legislative proposal has not yet been approved by parliament.

Last updated on 25/01/2022

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

As stated above, the employer risks a violation of the GDPR and the Anti-discrimination Act.

In principle, the GDPR prohibits the processing of sensitive data regarding the health status of persons, unless there is a valid ground for such processing. As employees cannot freely give their explicit consent for this processing to their employer (as per their hierarchical relationship), such processing would require a legal basis, which does not exist. A violation of the GDPR could result in a fine by the Belgian Data Protection Authority (up to 20 million euros). The Belgian Data Protection Authority has confirmed that without a legal basis, it is not possible to process data on the vaccination of employees.

Next, such a condition could be seen as discrimination based on health status, according to the Anti-discrimination Act of 2007. However, a distinction based on health status can be justified by a legitimate aim and when the measures to reach this aim are appropriate and proportional. One could argue that the prevention of the spread of covid-19 is a legitimate aim and that an obligation to get vaccinated is appropriate. However, some would state that mandatory vaccination is not proportionate, as employers can take other measures (eg, social distancing, teleworking) to prevent the spread of the virus. At least Unia does not seem to believe that a mandatory vaccination can be justified. A discrimination claim could, for example, result in a damages claim (lump-sum compensation of three to six months’ salary). A legal basis for mandatory vaccination would take away this risk of discrimination.

The Federal Public Service of Work also notes that a mandatory vaccination would violate the Act of 22 August 2002 regarding patients’ rights. This Act provides for freedom of choice for all patients undergoing medical treatment.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Until now, there have been no such requirements. But as stated above, this will be the case in the healthcare sector, starting from 1 April 2022.

Last updated on 01/12/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Employers are not entitled to ask their employees about their medical or vaccination status. If employers were to require employees to share this information, they would violate the right to privacy of the employees and the rules of the GDPR.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Until the pandemic, there were almost no legal rules relating to health and safety for remote workers, other than those laid down in article 15 of CBA No. 85 on structural teleworking. This article states that the act of teleworking should be communicated and also the rules concerning health and safety, specifically the use of computer screens, should be respected. Next, the health and safety prevention service would also need to access the workplace of the teleworker to see whether health and safety rules are respected or correctly applied.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

As a result of the pandemic, the issue of health and safety in a teleworking context has received greater attention. Yet, employers hardly have any (meaningful) obligations regarding a remote worker’s well-being. CBA No. 149 introduced several provisions in this regard, for example, the obligation to inform teleworkers about the company’s policy on well-being at work and preventive measures, including those regarding the setting of the workstation, and the use of displays and technology.

In addition, remote workers should be informed of the contact details of different staff members, such as their immediate supervisor; the advisers responsible for occupational safety, medical and psychological aspects of work; and, if applicable, a confidential advisor (ie, a confidant with whom employees can discuss any issues they have).

Furthermore, employers must provide measures to maintain the connection of remote workers with their colleagues and with the company, to prevent isolation.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Mobile workers do not fall within the scope of CBA No. 149. Therefore, the obligations mentioned in Q13 do not apply to them.

The generic guide on the prevention of the spread of covid-19 provides specific guidelines for employers regarding workers who work at another location, for example, with other employers or private individuals. Employers should check beforehand what safety measures apply to the place where the work will be performed. This information should be shared with employees together with the necessary instructions. Please note the generic guide is merely an instrument of the government to provide guidelines and has limited legal value.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

The only provisions on the mental health of remote workers can be found in CBA No. 149. A risk analysis performed by the employer should include a psychological dimension. Remote workers should have the possibility to have a so-called psychosocial intervention or a spontaneous consultation with an occupational physician. The concept of “psychosocial intervention” originates in the Belgian Well-being Act, which introduces a chapter dedicated to the prevention of psychological risks including stress, violence, bullying and sexual harassment. A psychosocial intervention consists of a conversation with a confidante or a prevention advisor, to resolve the conflict or issue at hand.

In addition, the aforementioned obligation of employers to enhance contact between remote workers and colleagues to avoid isolation is also aimed at preserving the mental health of employees.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

In the Belgian legal system, employers can use the system of “temporary unemployment due to force majeure” during the pandemic. This is a simplified procedure to ensure that employees whose work has become impossible or redundant during the pandemic can receive temporary unemployment compensation. When the job becomes viable again, for example, because of the reopening of restaurants, employees can resume their activities, without redundancy.

Furthermore, working hours can be temporarily reduced in the context of the pandemic. The Act of 27 March 2020 added a new section 8/1 in the Programme Act (I) of 24 December 2002, regarding measures for companies facing financial difficulties in the context of the pandemic. Specifically, the option was given to companies to reduce the working time of employees, thus reducing wage costs without having to terminate employees, with the reduction in social security contributions acting as compensation. Furthermore, the reduction in working hours implies a pro-rata reduction in gross pay. Therefore, a collective labour agreement (or work regulation) must provide for salary compensation. It should be noted, however, that even after the introduction of a reduction in working hours, full-time workers will remain full-time workers. The minimum wages set out in CBA No. 43, as well as sectoral minimum wages, must still be respected.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Trade unions have lobbied and collectively bargained for a specific legal system for teleworking during the pandemic, to clarify the obligations and rights of teleworkers during the pandemic. They were hoping for mandatory compensation for costs by employers; ultimately, this was not included in CBA No. 149, which formed the result of the negotiations. The trade unions have also bargained for, in the context of a national interprofessional agreement, a so-called coronabonus of 500 euros for employees of any company that has reported profits in spite of the crisis.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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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Belgium

  • at Van Olmen & Wynant

Based on CBA No. 149, a consultation is required. Article 4 of the agreement differentiates how its principles can be applied: by collective labour agreements concluded at a company level; by an amendment to the work regulations; by individual agreement; or by duly communicated teleworking policies. In each case, they must be drawn up under the rules of consultation within the companies and any competent bodies or, in the absence of such bodies, with the workers, taking into account the particular conditions applicable to the company.

Last updated on 21/09/2021

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United Kingdom

  • at Littler

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