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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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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

There is no specific statutory regulation on this matter related to employees under the home office framework. However, it is advisable to create a clear general policy on data protection or include in employment agreements provisions regarding data protection in order to clarify to employees the extent of their obligation. We recommend executing those documents in Spanish, due to the protective nature of local labour law; if there is a conflict with employees, a labour court is likely to dismiss all documents in a foreign language.

As a result, the Personal Data Protection Law (PDPL), Law No. 25,326, establishes the full protection of personal information recorded in personal files, registers, banks, or other technical means of data storage and processing. Therefore, employers must comply with the PDPL and take steps to ensure that this law applies throughout their organisation.

The main aspects of the PDPL are:

  1. The purpose of collecting employee data must be communicated to employees and written consent needs to be obtained.
  2. However, consent is not required if the data has been obtained from a public source; collected for the performance of the state’s duties; consists of lists limited to name, ID number, tax or social security identification, occupation, date of birth, domicile, and telephone number; or arises from a contractual relationship, either scientific or professional, of the data owner, and are necessary for its development or fulfilment.
  3. In addition, this Law establishes the employee’s right to access and modify any incorrect or false information. Furthermore, the collection of information related to an employee’s private life is permissible as long as the information collected complies with the following requirements: it is not used for discriminatory purposes; it does not violate the individual’s right to privacy; and it is reasonably used.
  4. When an employer requests personal data from an employee, they must be notified in advance and in an express and clear manner about: the purpose for which the data needs to be processed and who can use such data; the existence of the relevant data file or register, whether electronic or otherwise, and the identity and domicile of the responsible person; the compulsory or discretionary character of the information requested; the consequences of providing the data, of refusing to provide such data, or if it is inaccurate; and the data owner’s rights to data access, rectification, and suppression.
  5. Indeed, the processing of personal data requires express consent from the data owner, which must be accompanied by appropriate information, prominently and expressly explaining the nature of consent sought. This can be achieved by the employee signing a general consent form on entering employment. However, consent may be withdrawn by an employee.
  6. Various restrictions apply to the disclosure of personal data to third parties. This is generally only allowed if it is in the legitimate interests of the database owner (eg, the employer) and the data owner (eg, the employee) has consented. This consent can be revoked at any time by the data owner.
  7. The transfer of personal data to another country – which does not guarantee a proper level of data protection – is forbidden. Nevertheless, such prohibition is not applied when the individuals, whose personal information is intended to be transferred, give their express written consent.

All data regarding employees’ health is sensitive information, so the employer must get the express authorisation of the employee for any transfer of such date, and employers should stop or restrict the transfer to other companies or its employees that lack sufficient clearance to deal with health information, including covid-19 information.

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

In the context of an employer-controlled workplace, it is generally much easier to control and mitigate risks to an organisation’s confidential and sensitive information. There are physical protections intrinsic to the workplace (including by generally being off-limits to non-staff) and cyber-networks often have institutional protections in place, such as virtual private networks, firewalls, anti-virus software and secure IP addresses.

Other data protections that normally exist in an employer-controlled workplace include:

  • the use of private meeting rooms to conduct meetings and discussions involving sensitive and confidential information;
  • the secure storage of private, confidential and sensitive information (both hardcopy and in electronic form) on employer-controlled premises;
  • restrictions on the use of personal electronic devices in the workplace; and
  • the content of phone calls or video calls, and even information simply displayed in the workplace (including on computer screens), being kept private under the confines of the physical workplace.

However, the risks to data protection can be much harder to mitigate in the remote-working environment. These risks are heightened for several reasons, including that an employer has much less “visibility” over how employees deal with the employer’s (and any client’s) information in the home environment and much less when it comes to others who may be sharing that space. In this context, one obvious risk is the inadvertent and even deliberate sharing of sensitive information with one’s housemates, family members or guests.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

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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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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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

In a remote-working environment, employees are more likely to use their personal devices and Wi-Fi and might share their workspace with family members or roommates. In addition, employees are more prone to mix personal and work-related data. These may lead not only to potential issues involving one’s privacy but also cyber threats and data leakage. Therefore, employers are strongly advised to implement strict policies on remote working, use of personal devices and data storage, as well as to provide the appropriate training.  

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

As in other countries in Europe, the provisions of the EU General Data Protection Regulation (GDPR) and its German implementation in the shape of the German Federal Data Protection Act (BDSG) must be observed. Against this background, special measures must be taken to protect personal data in connection with remote work. This especially concerns third-party access to systems when computers and other portable devices are used in the home or on the go. To this end, employers often issue guidelines of standards with which employees must comply.

Also, remote working poses many data protection risks in terms of IT security and confidentiality. For example, cybercrime exploits the vulnerabilities inherent to remote working to infiltrate IT systems and steal confidential data, for instance through phishing attacks. At the same time, the confidentiality of a phone call, for example, is harder to protect while working in a co-working space, on a train or at home than in a typical workspace. Therefore, remote working may require different security measures and employers should inform their employees accordingly. In this regard, the European Union Agency for Cybersecurity last year published cybersecurity tips for remote working, both for employees (connecting to the internet via secure wi-fi networks, fully updating antivirus software and using a secure connection) and for employers (providing initial and regular feedback to employees on how to react if problems arise and restricting access to sensitive systems, etc.).

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Although necessitated by the circumstances, the transition of employees from corporate networks to largely unmonitored and vulnerable private networks outside the reach of perimeter-based security tools finds most employers unprepared and, thus, exposed to greater cyber threats and personal data breaches compared to on-site work. Employers are urged to take into consideration the increased risks a remote working environment poses to their data, systems, and networks and to invest heavily in IT security, while employees are encouraged to carefully follow all IT security guidelines, stay alert to security incidents, and be vigilant with phishing attacks. Within this framework, the Hellenic Data Protection Authority (HDPA) issued “Guidelines for implementing safety measures in the context of teleworking” on 15 April 2020, including appropriate safety measures concerning network access, the use of email or messaging applications, the use of terminal or storage media and how teleconferencing takes place to mitigate data protection risks associated with remote working.

On the other hand, many of these measures may result in more extensive collection and processing (recording, use, disclosure, etc) of employees’ personal data, including monitoring procedures. The key issue for most employers amid these circumstances is to find the right balance between protecting their IT systems and data, on the one hand, and safeguarding the data protection and privacy rights of their employees while working from home on the other.

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

As a result of the covid-19 pandemic, many companies in Hong Kong encouraged their staff to work remotely. This meant taking documents home from the office and using video conferencing, cloud computing and intranet platforms, where those software solutions were available, and also using personal devices to work more. As a result, confidentiality and security of data became more at risk.

Due to space constraints in Hong Kong, it is not practicable to expect employees to work or conduct confidential discussions in an isolated area away from others. Often employees are sharing workspace with family members and may also share a laptop or PC with them. If working from home is not an option for an employee, he or she may be working from cafes or public spaces. As a result, non-employees may overhear confidential discussions or see confidential documents. If these conversations and documents contain personal data (of employees, customers, clients, suppliers or other third parties), then the potential leakage of this data may constitute a breach of the Personal Data (Privacy) Ordinance (PDPO). There may also be contractual confidentiality breaches.

A typical home network is unlikely to have the same stringent security protections in place that an office network does. Attackers have seen an opportunity to steal user credentials from personal devices, which are now being used for work and likely do not have the same security protections as corporate devices. Using unsecured networks and devices may lead to data leakage or theft, which would be in breach of the PDPO.

If personal data is being processed by new third parties as a result of having to implement remote-working arrangements, an employer will need to notify its employees of this. This can be done by issuing employees with a revised or new Personal Information Collection Statement (PICS) setting out the change. The PDPO specifies that a data user, when collecting personal data directly from a data subject, must take all reasonably practicable steps to ensure that the data subject is informed of the intended use of their data and who will be handling such data. A PICS is therefore used to comply with these notification requirements and is a statement regarding a data user’s privacy policies and practices in relation to the personal data it handles. 

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

An individual’s sensitive personal data or information (SPDI), which includes information on passwords; financial information such as a bank account, credit card or debit card or other payment instrument details; physical, physiological and mental health conditions; sexual orientation; medical records and history; or biometric information or other details related to such information provided to a body corporate for the provision of services or such information received for processing under a lawful contract or otherwise and its storage are protected under Indian data privacy rules. There are certain mandatory obligations for collectors of such SPDI in electronic forms, including obtaining the consent of the data provider, formulating, publishing, and complying with a privacy policy for treatment of such data and adopting certain standards of security practices. However, these obligations are not specific to remote-working arrangements; they govern the terms of the data being collected by the employer.

With employees working remotely, employers are facing a challenge with protecting the security of client data and other confidential information, which may be duplicated or disclosed to third parties by employees working remotely on unsecured personal devices.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

The Data Protection Commissioner has issued guidance on the protection of personal data when working remotely (see here).

The key risks identified relate to protecting and preventing access to laptops, USBs, phones, tablets and other devices; emails; using unsecured networks to transmit data or to access company networks; and ensuring the security and confidentiality of hard-copy documents.

Employers should update data protection policies to take account of remote working and should also consider any data protection issues that may arise from an employee moving to work outside of Ireland.

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Data security requirements applicable to all employees working at the company premises continue to apply to employees working remotely. In addition, the National Protocol on Smart Working specifies that the employer should promote the adoption of a policy also concerning data breach management and the implementation of proper security measures.

The main risks are linked to the transmission of company data outside the company premises, in places not necessarily identified.

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Security controls

The common risks associated with remote working derive from the absence of security controls over equipment, software, and data, and not having any policies for remote-working schemes, leading to:

  • employees storing sensitive information in their local machines, without the control of employers over such tools;
  • compromised security controls; and
  • Wi-Fi networks and routers in homes are more easily compromised, increasing the risk of exposure.

Companies have the right to install security controls for the equipment and tools to be used by teleworkers to avoid any leaks of information and limit their use, because this hardware is the property of the employer. The common practice in Mexico is to implement a security data policy and a work tools policy.

Additionally, even though there are no specific legal provisions concerning the plausible risks associated with data protection in remote-working schemes, the Federal Law for the Protection of Personal Data in Possession of Private Individuals or Entities, the Federal Law for the Protection of Industrial Property, and their regulations and guidelines, establish provisions for the protection of rights concerning personal data, confidential information, and trade secrets, which also apply to remote-working schemes; therefore, all employees working remotely must comply with these laws and regulations. To prevent and avoid the disclosure of this information, the prevailing practice is to enter into agreements with employees establishing specific obligations in connection to confidentiality and data privacy. Such obligations usually refer to the policies and processes established by employers to ensure information security, and the corresponding penalties in the event of any breach.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Employees who process data at home could create a data leak if they lose the data or improperly dispose of it after it is no longer useful for the company or their work. It is also more difficult to protect digital data in a non-professional setting and a private network might be more vulnerable to breaches. If a data breach does occur, the employee should, in principle, report this to the Dutch Data Protection Authority within 72 hours.

Employers are advised to update data protection policies to take into account remote working, and should also consider any data protection issues that may arise from an employee moving to work outside of The Netherlands.

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

Telework or remote work should be organised in a way that ensures the protection of confidential information and other legally protected secrets, including trade secrets or personal data, as well as information whose disclosure could harm the employer.

Certain risks are present when employees perform work remotely:

  • they may use their own private equipment;
  • they may use company equipment for private purposes;
  • they may use an unsecured internet connection, including without a VPN (Virtual private network) connection; and
  • they may work from various unregulated locations, including coworking areas. 

Therefore, it is recommended that employers develop instructions regarding data protection and information safety (usually as part of their teleworking policy, which must be introduced with the participation of the employees' representatives) and ensure that these are introduced and applied effectively in the day-to-day work of remote workers.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, teleworking was used rather infrequently, and most Portuguese employers were not prepared – namely in terms of technology and data storage – to suddenly have their workforce almost entirely and permanently working from home or remotely.

For those reasons, teleworking mainly raised – and continues to raise – concerns regarding the employer’s capacity to ensure that information is protected and that it stays confidential despite being remotely accessed and processed. Remote working enhances security vulnerabilities, which can lead to data breaches.

We would also like to highlight the use of technological solutions that, on one hand, allow employers to exercise their powers of management and control over work performance, but that, on the other, do not violate the general rule prohibiting the use of remote surveillance to control employees' professional performances, or that do not cause excessive restrictions on employees’ private lives.

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely.  Taking precautions against importing viruses, compromising system security, and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks. 

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely in most jurisdictions. These risks are heightened in Saudi Arabia as there are no specific data protection laws in place. Taking precautions against importing viruses, compromising system security, and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Apart from the general personal data protection issues to be considered, there are two significant risks.

First, under article 17 of Law 10/2021, any digital program or software to monitor remote workers must grant employees privacy and protection of personal data according to the Organic Law on Personal Data Protection and Digital Rights Guarantees. In particular:

  • an employer’s access to the digital technology provided to the remote worker must be limited to checking compliance with labour obligations and to guaranteeing the integrity of the devices;
  • employers must establish the terms of use of the digital devices, and the workers’ representatives must participate in drafting them;
  • employers must inform remote workers about the terms of use of the digital devices; and
  • regardless of the terms of use, an employer’s access to the digital means must be necessary for the employer to achieve a legal purpose, appropriate for such legal purpose and proportional to achieve such legal purpose. Based on this, the employer should implement the least invasive way of monitoring remote workers’ activity to achieve the legal purpose the employer is pursuing.

Any measure to monitor employees’ activity should meet these requirements; otherwise, an employer’s decision arising from such monitoring could be deemed unfair, and there could be a breach of the employee’s privacy, which could lead to a damages claim and an administrative fine.

Second, employers must comply with the principles of personal data processing under article 5 of the GDPR, especially purpose limitation and data minimisation, which means that the personal data the employer can process should be only what is the minimum necessary data for the performance of the labour contract or compliance with their legal obligations. Therefore, employers are not entitled to, for instance, force remote workers to turn on their cameras during working hours.

Third, despite remote working, employers must comply with health and safety obligations, which could lead to the employer or its health and safety services provider visiting an employee’s home to evaluate its risks. In that case, employers should issue a report justifying the visit and provide it to the remote worker and the health and safety workers’ representatives in advance. Additionally, to access any remote worker’s home, the employer must first obtain their consent.

If they do not give their consent, measures on health and safety should be based only on the information provided by the remote workers.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

Pursuant to the GDPR, personal data should, inter alia, be processed in a manner that ensures appropriate security and confidentiality for the processing of that data, including by preventing unauthorised access to or use of personal data. For natural reasons, there may be additional challenges associated with this obligation when employees are working remotely, including an increased risk of personal data breaches when employees are working from home. The Swedish Authority for Privacy Protection mentions in its Privacy Protection Report of 2020 the increase in employees working from home as a result of the covid-19 pandemic, and the increased use of cloud service providers. The Authority highlights that data in cloud services is often transferred to countries outside the EU/EEA, and especially to the US. As a result of the Schrems II ruling in 2020, the use of, eg, cloud service providers that transfer data to  such jurisdictions (eg, in connection with IT maintenance) is problematic and may need to be addressed in relation to remote working.   

In light of the above, it is important as an employer to consider what measures are necessary in terms of IT security when working from home (eg, instructions to employees).

Last updated on 21/09/2021

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Switzerland

  • at Lenz & Staehelin

Employers are required to respect the general Swiss data protection principles and rules. In particular, the Swiss Code of Obligations (SCO) states that the Federal Act on Data Protection (FADP) applies to the handling of employer personal data. The term "personal data" is defined as any information relating to an identified or identifiable person (individuals and companies).

Employers must ensure the security of the data they process. They must take appropriate organisational and technical measures to protect personal data against unauthorised processing or access, such as accidental or unauthorised destruction, loss, technical errors, falsification, theft, unlawful use, alteration, copying or any other undue processing. Moreover, employers also must control access and operations undertaken by employees.

One particularity of remote working is that employees' workstation and business data are located off sites. Meaning that third parties potentially could access this data.

To prevent data protection breaches, employers must institute appropriate technical and organisational measures and raise employee's awareness of data protection risks. These measures may include securing information systems, setting up authorisations and limiting access to concerned employees, and using a VPN. In addition, employees also should be made aware of the risks and procedures through in-house training and user manuals for the IT and security systems.

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

The key data protection risks associated with remote working are data security and the processing of additional personal data while working remotely.

Under article 12 of the Personal Data Protection Law numbered 6698 (the DPL), data controllers must take all administrative and technical measures necessary to prevent unlawful processing of personal data, to prevent unlawful access to personal data and to ensure the security of personal data.

The Regulation also stipulates that the employer must inform remote workers about workplace rules and applicable legislation concerning the protection and transfer of data related to the workplace and their assignments (which may include personal data). The Regulation also emphasises that employers must take all necessary measures for the security of data. Per the Regulation, in the remote-working agreement, the employer must determine the definition and scope of data that needs to be protected.

There is no guidance from the Turkish Data Protection Authority (DPA) concerning measures to be taken specifically for remote working. Its general Guideline for Personal Data Security (Data Security Guideline) and the principal decision of the Turkish Data Protection Board concerning measures required to be taken by data controllers for processing sensitive personal data (Board Resolution for Sensitive Personal Data Security) should be considered by employers. The measures listed in the Data Security Guideline and the Board Resolution for Sensitive Personal Data Security are not exhaustive. Employers must consider all necessary measures for cyber security. International guidelines and IT sector developments should also be considered.

Employers who have failed to take appropriate measures to protect the unlawful processing of or access to personal data may be required to pay an administrative fine amounting to between 40,179 Turkish lira and 2,678,859[1] Turkish lira. Furthermore, additional technical measures taken for remote-working opportunities must also be communicated to the Data Controllers’ Registry if the employer is required to register data-processing activities (eg, employers located in Turkey that have more than 50 employees or have a balance sheet of more than 25 million lira fall under this obligation). Otherwise, although it may not be an imminent risk, an administrative sanction amounting to between 53,572 lira and 2,678,859 lira may be applied against the employer.

Lastly, if having remote-working employees requires an employer to process additional employee data, then the employer must inform their employees accordingly by providing an appropriate privacy notice under the DPL. Otherwise, they may be fined between 13,391 lira and 267,886 lira. The employer should determine what legal ground should be applied to the data processing due to remote working. If the applicable legal ground is consent but consent is not obtained lawfully from employees, then the employer may face an administrative fine of between 40,179 lira and 2,678,859 lira for unlawful processing. 


[1] All administrative fine amounts mentioned in this questionnaire will be updated for each year based on a re-evaluation determined annually.

Last updated on 09/02/2022

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UAE

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely in most jurisdictions. Taking precautions against importing viruses, compromising system security and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks. 

Last updated on 15/03/2022

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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

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United States

  • at Littler
  • at Littler
  • at Littler

Data privacy rules vary from state to state. Remote work, in particular, raises issues where employers have less control over the working environment and employees are potentially accessing sensitive information in their home that they share with others.  Employers should ensure that employees working remotely can demonstrate that their location provides sufficient privacy, security, and safety to secure the confidentiality of the employee’s work, company information and materials.  Additionally, health-related data must be protected and employers should be required to protect trade secrets and other confidential data. Employers must also maintain reasonable security measures to protect sensitive personally identifying information. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The home office framework establishes that teleworking employees have the same rights and duties as those working at an employer’s main offices (including union rights), and their salary must not be less than what they would receive if they worked at an employer’s offices. Therefore, once employees are assigned to remote working, their compensation cannot be reduced due to this change.

In general terms, employers have the right to redesign or reassign job responsibilities. Such a right is known as an employer’s right to modify labour conditions (Ius Variandi). In this sense, local laws allow unilateral amendments to terms and conditions of the employment contract provided they do not adversely affect essential labour conditions and do not cause any moral or material damage to the employee and the changes are reasonable.

As a result, if an employer unilaterally decides to reduce the salaries or benefits of remote workers, and the change is considered to be unreasonable, resulting in material or moral damage to the employee involved, he or she can file an injunction to restore the original conditions of employment. If the employer refuses to do so, the employee may claim constructive dismissal and file for severance compensation and any applicable fines.

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

An employee’s salary and contractual benefits are entitlements that are contractual and employers cannot unilaterally vary such entitlements. Similarly, an employee’s remuneration may reflect the minimum rate of pay provided for in an industrial instrument such as a Modern Award and employers will not be able to reduce the remuneration or benefits without running the risk of undermining the minimum entitlements provided in the instrument.

Employers can consult with staff about a proposal to restructure their hours and pay, but generally, no such changes can be implemented without employees being given an opportunity to consider the proposed changes and agreeing to those changes.

The minimum wage order provides that an employee cannot be paid less than the national minimum wage.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

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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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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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers cannot reduce the salaries or benefits of employees solely because they work remotely. Note that the federal government has introduced certain measures to help companies survive through the pandemic and avoid layoffs (eg, reducing employees’ working hours and salaries, suspending employment contracts temporarily, remote working (with fewer requirements than those set forth by the CLT), and delaying the collection of certain labour charges). These alternatives apply to all employees regardless of their work arrangement (ie, remote workers or not). Therefore, it may be the case that employees were shifted to a remote model and have had their working hours and salaries reduced. Other than that, salary reductions would depend on prior negotiation with the applicable union.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

The employer is required to pay remuneration based on an employment contract or collective bargaining agreement. Normally, there are no clauses in that contract that provide for a reduction in salary if the employee works remotely. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (such as meal allowances or reimbursement of travel expenses) may no longer apply in individual cases.

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Equal treatment between employees working remotely and those working at the company’s premises are guaranteed. Any reduction of salaries may be implemented only following the employee’s consent (ie, by signing an amendment of the employment agreement).

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

Unless the employee has a clear policy or a contractual provision that permits it to reduce salaries or benefits in this situation, it is unlikely that the employer could lawfully make such reductions without the employee’s consent. Where an employee has elected to work remotely and there is such a policy or contractual provision in place, the reduction in salary or benefits is unlikely to be challenged by the employee. Where an employee has been forced to work remotely by their employer (due to covid-19 or otherwise), such a reduction may be challenged as the remote working has not occurred at the employee’s request.

Generally, if an employer changes an employee’s salary or benefits unilaterally, an employee could bring potential claims against it for unlawful deduction from wages, unreasonable variation of employment terms or constructive dismissal.

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

“Wages including the period and mode of payment”, “contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force”, “compensatory and other allowances”, “hours of work and rest intervals”, “leave with wages and holidays” and “withdrawal of any customary concession or privilege or change in usage” are some of the protected conditions of service under the Indian labour law. For changing any such service conditions to the detriment of the workers, the employer is required to provide 21 days’ prior notice and inform the labour authorities in a prescribed format.

Additionally, the payment of salary and benefits is largely a matter of contract between the parties, beyond the minimum requirements under the labour laws in terms of wages, bonus, social security, insurance, overtime, etc. Hence, the terms of the individual employment contract and policies also need to be considered while reducing wages or removing benefits. These are generally sensitive matters and could also lead to HR issues for the employer, especially if the employees are unionised.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

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, such a reduction could be agreed upon between the parties as part of an agreement, for example, to permit the employee to work remotely permanently.

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Under Smart Working regulations, employees who work remotely are entitled to receive an overall economic treatment equal to that paid to employees working at the company’s premises. Therefore, generally speaking, employers cannot reduce salaries/benefits of employees working remotely. Nonetheless, recent Italian case law considered it possible for employers to revoke meal tickets from remote workers (except in the case of specific contractual obligations), as it is not part of the normal salary of the employee.

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

No, any reductions to employees’ salaries or benefits are considered a unilateral modification to employment conditions, and therefore are grounds for justified rescission of the employment contract with total responsibility attributed to the employer. If this were to happen, severance will have to be paid as if it were an unjustified dismissal.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, this is not the case unless the individual employee provides his consent therewith. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (e.g, travel expenses) may no longer apply in individual cases.

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

No. Any such action could be considered as discrimination or other unequal treatment. Remote workers must be remunerated based on the same rules as all other staff, including in terms of their access to other benefits. 

Likewise, within the principles adopted for all staff, remote workers may visit their employer’s office or premises, communicate with other employees, use the employer’s rooms, facilities and company social facilities, and may benefit from social activities organised by the employer.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Teleworking employees have the same rights and obligations as any other employees, which implies that no reduction in salaries or benefits is admissible, in principle. Under Portuguese labour law, employers cannot reduce basic remuneration unless there is a demotion, which must be, in any case, expressly authorised by both the employee and the Authority for Working Conditions (ACT).

Reducing or cancelling any other payments to remote workers would be deemed discriminatory, and therefore illegal, except for situations where valid grounds could justify it.

Moreover, concerning reducing or suppressing benefits, the fact that benefits have been granted regularly over the years may lead to their qualification as acquired rights of the employees and part of employees’ remuneration, which would mean restrictions on the termination, reduction or alteration of such payments.

During the beginning of the covid-19 pandemic, there was debate over whether employees were still entitled to a meal allowance if they were teleworking, since the cause for payment would cease to exist (ie, employees would no longer be forced to spend money on out-of-home meals). However, the government clarified that, under the special compulsory teleworking regime (whenever the nature of the functions being performed was compatible with it), employees retain the right to a meal allowance, based on the principle of equal rights for on-site employees and teleworkers. It is now fairly and widely accepted that such meal allowances cannot be withdrawn based on the circumstances of teleworking employees.

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed upon with the employee.  There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed with the employee. There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Article 4 of the Law on Remote Working provides equal rights for remote and on-site workers, so they receive equal pay and are entitled to the same schedule, breaks and work-life balance, and they are expressly included in equality plans and harassment prevention protocols.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

The employer is not entitled to unilaterally reduce the employee’s salary or other employment benefits unless provided for in the individual employment agreement or a collective bargaining agreement. Hence, such a measure would require an agreement between the employer and the employee. If the employer implements unilateral salary deductions, the employer may be held liable to pay damages for a breach of contract. Moreover, there is a risk that the employee can claim that the deductions imply an unlawful termination of employment, which could make the employer liable to pay both compensation for losses sustained (capped at 32 months’ salary) as well as general damages.

Last updated on 24/01/2022

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Switzerland

  • at Lenz & Staehelin

The payment of salary constitutes one of the employers' main obligations under an employment contract. This obligation exists even in the case of remote working and, therefore, it is not possible to reduce salary due to remote working.

Regarding benefits, a distinction must be made between different types. For example, it could be considered that employers who provide a car or a transport pass to employees could waive this benefit or reduce it proportionally if employees carry out all, or part, of their professional activity from home. However, if employees are paid meal allowances, it may be more difficult to justify removing this benefit, although the situation is less clear in situations in which employers provides employees with free meals.

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

As per article 14 of the TLA, remote workers cannot be treated differently from a comparable worker solely due to the nature of their employment contract. Employers cannot reduce the salaries or benefits of employees who work remotely merely on grounds of remote working. However, if there is other justification, such treatment may be acceptable.

Last updated on 21/09/2021

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UAE

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed upon with the employee. There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 08/11/2021

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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

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United States

  • at Littler
  • at Littler
  • at Littler

Most jurisdictions in the US have at-will employment, so that with appropriate advance notice, salaries and benefits of at-will employees can be reduced without issue (ie, assuming no contract and the pay does not fall below the threshold for minimum wage or to maintain any particular exemption).  However, as with any workplace policy, the law mandates that selection for wage reduction be without regard to protected status such as race, age or disability. Thus, there may be an exposure to risk of claims to the extent that those who work remotely are seeking an accommodation or there is a potential for disparate impact.  Thus, employers should ensure that there is no "disparate impact" on any protected status that is required to work remotely.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

As mentioned in questions 7 and 8, Resolution No. 4/2021 established that employees who choose not to be vaccinated must act in good faith and do everything they can to reduce the health risks their decision may cause to employers. Therefore, employers may limit entry to the workplace to employees who have received a covid-19 vaccination. Please bear in mind the recommendations mentioned in questions 7 and 8 above.

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

Unless a specific public health order allows an employer to impose such a condition on entry to its facilities (and these have been imposed by employers in certain sectors, including the aged-care sector), employers should avoid doing so as this could infringe anti-discrimination laws, and give rise to claims that an employee has suffered an adverse action.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

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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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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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Considering by analogy the Supreme Federal Court’s decision on the possibility of federal, state and municipal authorities imposing restrictive measures for citizens who refuse vaccination and health and safety rules in the workplace, we understand that there may be grounds to defend a policy allowing only employees who have been vaccinated to access the office, as long as those who are not vaccinated can still work from home without major consequences (such as termination). That being said, the main risk would be having those employees who have not received a covid-19 vaccination argue that they have been discriminated against and claim for an award of damages for pain and suffering – especially if they are subject to discipline (including termination).

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

Under current law, employers may not – apart from the health care and nursing sector – make employment conditional on employees being vaccinated. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his or her right to employment (ie, through an interim injunction to compel the employer to grant access to the workplace and to provide employment). In addition, there is a risk for the employer that the demand for vaccination will be assessed as discrimination, at least in the case of employees who cannot or do not want to be vaccinated because of pregnancy, disability or for religious reasons.

Based on the new temporary amendments to the Infection Protection Act, a “3G” rule applies in the workplace: employees will only be allowed to get access to their workplace inside company’s premises if they have been vaccinated, have recovered from covid-19 or have been tested (with a negative result) not more than 24 hours before the time entering their workplace. Employers must check whether employees comply with this obligation and keep a record. Employees of nursing and care facilities must regularly submit a negative test even if they have been vaccinated or have recovered.

Last updated on 14/04/2022

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

See question 7 regarding vaccination and entering the workplace.

Given that covid-19 vaccination is not mandatory (with some exceptions for employees working in nursing homes, hospitals, etc), making entry subject to having received a covid-19 vaccination is not lawful and gives employees grounds to raise a discriminatory claim against their employer.

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

If an employer were to implement this condition, there may be employment law and data privacy issues.

The potential data privacy issues are set out in response to question 11 below.

From an employment law perspective, unless an employee’s workplace is subject to vaccine pass rules (see our response to Question 8 above for further details), the current position is that making entry to the workplace conditional on having a covid-19 vaccination may constitute a breach of contract or an unreasonable variation of employment terms, unless it was consented to by the employee or it amounts to a lawful and reasonable direction. If an employee is dismissed as a result of not being able to enter the workplace (eg, they were unable to carry out their full job duties without being in the workplace and were therefore made redundant), this individual could challenge the reasonableness of their dismissal if they have two or more years’ service. (However, as mentioned in our response to Question 8 above, after the Amendment comes into force, an employer could make entry to the workplace conditional on an employee having received a covid-19 vaccination by making a “legitimate vaccination request”, and the employee’s failure to comply with the request could be a valid reason for dismissal.)

Employees protected by Hong Kong’s anti-discrimination ordinances may also be able to bring claims against their employers if the condition is disadvantageous to them as a group and the individual is also personally affected. For example, if an individual who is pregnant or breastfeeding decides not to receive a covid-19 vaccination because of recommendations from their doctor regarding their baby’s health, and they are refused entry to the workplace, they may claim indirect sex discrimination on the basis that while the condition applies to the entire workforce, it is more disadvantageous to those who are pregnant or breastfeeding as they are less likely to be vaccinated and, in turn, it has disadvantaged her personally. Regarding this individual’s losses, this may be limited to injury to feelings but could also lead to financial loss if this individual missed out on opportunities as a result of not being able to enter the workplace or was dismissed.

Notwithstanding the above, the government has recently required that all civil servants must receive two covid-19 vaccine doses by 1 April 2022, or they will be banned from government premises (unless they hold a medical exemption). Further, with the introduction of the vaccine pass rules (please refer to our response to Question 8 above to further details), employees who are unvaccinated would in any event be banned from entering their workplace if their workplace is subject to vaccine pass rules.

Last updated on 06/04/2022

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India

  • at Nishith Desai
  • at Nishith Desai

A private employer has a right to restrict the entry of any employee to its private office premises if the employee is not vaccinated. In such a case, the employee may continue to work remotely.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

Where employers can objectively justify restricting access on that basis (e.g. to maintain a safe working environment), the risk of such a restriction being successfully challenged is limited. However, the processing of this data may be problematic from a data protection perspective.

In any event, it does not confer any particular advantage to adopt this approach given that the current official guidance is that employees continue to follow best practice guidance, such as, following the public health advice regarding self-isolation and staying away from the workplace when displaying any symptoms of Covid-19, irrespective of an employee’s vaccination status.

Last updated on 16/08/2022

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Italy

  • at Toffoletto De Luca Tamajo

As mentioned above, the company’s occupational doctor can lawfully consider the covid-19 vaccination as a necessary requirement for entering the workplace. Should employers impose this measure without the intervention of its occupational doctor and prohibit unvaccinated employees from entering the company and work, it may give rise to claims against the employer for demotion and damages.

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Entry to the workplace could be conditioned on receiving a Covid-19 vaccination as a health and safety measure to prevent the spread of the virus. However, since vaccination is not mandatory, employees who have decided not to get vaccinated have the right to remain active and continue providing services at the employer’s premises or remotely without changes to their employment conditions.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Under current law, employers may not make entry to the workplace conditional on employees having received a covid-19 vaccination. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his right to employment in court. In addition, refusing entry for unvaccinated employees could be considered as discrimination and a violation of privacy legislation.

More information can be found here

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

A general prohibition against non-vaccinated employees coming to their employer’s premises (when the premises are not closed to everyone) is risky. Vaccination itself is not a reason to differentiate between employees if this is not objectively justified. Categorising employees based on their vaccination status could be considered a form of discrimination. The Labour Inspectorate could impose a fine for a violation of employees’ rights. An employee could file a claim of discrimination against the employer, demanding compensation.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Employers cannot require employees to provide information regarding their health – namely but not exclusively regarding their vaccination – except when it is strictly necessary and relevant to assess their suitability for work and the stated purpose is provided in writing to employees. Please note that even in such cases, health data would be provided to the occupational doctor – ie, not directly to the employer – who in turn can only communicate to the company an employee's fitness to perform their role.

Therefore, it is unlawful to make entry to the workplace conditional on employees having an optional vaccine such as covid-19, both from a labour and a data protection perspective. Such behaviour can be deemed a very serious breach of labour laws, leading to penalties, orders to cease such conduct, and damages under general civil law principles.

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Implementing a mandatory vaccination policy poses a conflict between an employer’s obligations concerning the health and safety of its employees versus an employee’s right to choose whether or not to be vaccinated. Vaccination cannot be mandated; however, employers can state that access to the workplace will only be granted to those who are vaccinated. Imposing a requirement to take the covid-19 vaccination would require the employee’s consent. In such instances, consideration should be given as to the rationale and employee concerns, as well as whether employees perform a role that can be undertaken from home. The employer should also ensure that any vaccination policy allows for exceptions relating to pregnancy or other issues which may mean vaccination is not appropriate.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

There is a minimal risk, given that a mandatory vaccination policy has been enforced by the KSA Government (see question 8).

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

The employer may face administrative fines for breaching obligations on labour law and personal data:

  • by hiring only vaccinated individuals, the employer’s decision could be considered discrimination against individuals who decide not to get the vaccine; and
  • by asking job applicants whether they are vaccinated, the employer could breach the regulations on personal data. As this is data concerning health, it is a special category of personal data under the GDPR, and its processing is prohibited except in specific cases, which would not apply in this case.

Any of these actions is a very serious breach, leading to labour-related administrative fines ranging from €6,251 to €187,515 (as of 1 October 2021, from €7,501 to €225,018). Additionally, the employer may face administrative fines for breaching the GDPR.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

Requiring employees to be vaccinated in the office may render discrimination claims from employees unable or unwilling to take the vaccine due to characteristics protected in the Swedish Discrimination Act. As mentioned above, an employer cannot compel an employee to get vaccinated. However, the employer must take all necessary measures to avoid risks of injury or ill health at work according to the Work Environment Act. If no other measures than a vaccine are available to ensure a safe environment (where other protective measures such as face masks, safe distancing or similar are deemed inadequate), it could be argued that it is justifiable to ask employees to be vaccinated to work from the office or continue homeworking until the rate of infection has gone down, if this is necessary and proportionate to ensure a safe working environment.

Last updated on 21/09/2021

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Switzerland

  • at Lenz & Staehelin

Except in the abovementioned exceptional cases, employers prohibiting unvaccinated employees from working would be obliged to pay these employees their full salary, even though they did not perform their work.

Employers who have opted to implement measures requiring employees to present a covid certificate should use the Covid Certificate Check application to verify whether employees have a valid covid certificate. The Federal Data Protection and Information Commissioner (FDPIC) has said that employers should avoid keeping a list of employees with a valid covid certificate, or otherwise storing such data, as the employer could be considered to be processing sensitive personal data and thus subject to the rules set forth in the Swiss Data Protection Act (DPA). 

Further, the covid certificate can be presented for verification by the Covid Certificate Check application in either its original version or the "light version". With the original version, it is possible to see whether the employee was vaccinated, recovered from covid or received a test; the "light version" only shows whether the employee has a valid covid certificate. The FDPIC recommends the use of the "light version" in workplaces, as less personal data is visible.

Moreover, this information may not be used for purposes other than determining appropriate workplace protective measures and implementing a testing plan.

Last updated on 20/01/2022

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

As mentioned above, employers are under an obligation to protect their employees. This means that employers should consider the health of employees working at physical premises. On the other hand, as explained above, employers cannot force employees to get vaccinated, and making entry to the workplace conditional on an individual worker receiving a covid-19 vaccination may be construed as pressure by the labour courts.

Please see question 10 regarding the option of requesting mandatory PCR testing.

Last updated on 09/02/2022

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UAE

  • at Clyde & Co
  • at Clyde & Co

Implementing a mandatory vaccination policy poses a conflict between an employer’s obligations concerning the health and safety of its employees versus an employee’s right to choose whether or not to be vaccinated. Vaccination cannot be mandated; however, employers can state that access to the workplace will only be granted to those who are vaccinated. Requiring a covid-19 vaccination would require the employee’s consent. In such instances, consideration should be given as to the rationale and employee concerns, as well as whether employees perform a role that can be undertaken from home. The employer should also ensure that any vaccination policy allows for exceptions relating to pregnancy or other issues that may mean vaccination is not appropriate.

Last updated on 08/11/2021

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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

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United States

  • at Littler
  • at Littler
  • at Littler

While federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability through alternative measures. Those can include getting tested weekly or working remotely.  In addition, state law is rapidly evolving in this area and we have seen a steady increase in worker lawsuits that are filed on the basis that treating unvaccinated people differently is discriminatory or unlawful. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers were limited in making changes to their organisations until 31 December 2021 because since the covid-19 outbreak, terminations without cause, regular terminations, terminations based on a scarcity of work, and suspensions due to force majeure or scarcity of work were forbidden since 31 March 2020. Such measures are not in force anymore, because Decree No. 413/2021expired at the end of 2021. Therefore, since 1 January 2022, employers have the power to dismiss and suspend employees without fair cause.

In addition, the Government established the obligation to pay an increase of the severance compensation in cases where an employee was dismissed without fair cause or claims constructive dismissal, but this measure is not in force anymore as of 1 July 2022. (This is due to the fact that Decree No. 886/2021 was not extended; it was valid through 30 June 2022.)

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

Employers are entitled to consider ways their business can be restructured to maximise efficiency, including where this may involve redundancies and changes to how remuneration is structured. This basic right has not changed during the pandemic, and for many Australian employers impacted by covid-19 it has been necessary to consider making such changes to their business to ensure they have the most optimal structure in place to manage the impacts of covid-19 and are best placed to meet the changed economic environment.

However, the pandemic has not seen any “relaxing” of the rules that govern how an employer must go about introducing changes that affect employees. In relation to redundancies, employers must have a genuine business case and are required to consult with employees before making any decision. In relation to reducing employee wages and salaries, employers will still generally need to obtain an employee’s consent before making such changes in the normal manner.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

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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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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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers have adopted different approaches to tackle Covid-19, including by terminating employees, shifting to a remote-working model or adopting one (or more) of the measures implemented by the Federal Government to help companies survive through the pandemic and avoid, to the most extent possible, layoffs. Examples of such measures would include: reducing employees’ working hours and salaries, suspending employment contracts temporarily, shifting to a remote model (with less requirements than those outlined in the CLT) and delaying the collection of certain labour charges. The union’s involvement in the implementation of these measures would depend on the measure itself (as some of them would not require the union’s ratification or participation). 

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

During the pandemic, employers were able to carry out reorganisations involving collective redundancies for economic reasons (subject to justifying a real and serious economic reason as defined by article L.1233-3 of the labour code).

They were also able to negotiate collective performance agreements to meet the needs linked to the operation of the company or to preserve or develop employment by adjusting the working hours of employees, remuneration, and determining the conditions of professional or geographical mobility within the company.

Employers may also have to negotiate or renegotiate agreements or charters on remote status or review their organisation by developing a co-working space, different from the company’s premises, on a regular or occasional basis or in case of exceptional circumstances or force majeure.

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

Termination for operational reasons requires the absence of a permanent need for employment. If this is only temporary, in general, this does not justify terminating the employee's employment. This also applies to temporary closures ordered by the authorities. Termination for operational reasons should be a last resort, even in times of a pandemic. The employer must introduce short-time work or a reduction in vacation days before giving notice.

Short-time work can temporarily shorten working hours and reduce the employee's entitlement to remuneration. The aim of ordering short-time work is to prevent redundancies and to preserve jobs. The employer has a unilateral right to order short-time work if it is permitted to do so by a collective-bargaining agreement, works council agreement or employment contract. Due to the covid-19 pandemic, various special regulations apply in the area of short-time work. That includes the payment of social security contributions. Special regulations in force for short-time allowance allow the employer to be reimbursed for 100% of their social security contributions up to 30 September 2021.

The employer cannot unilaterally reduce salaries just because workers cannot be employed during the crisis outside of short-time work. The employer bears the risk of employing workers even in a crisis and is required, if necessary, to pay the full salary even without employment.

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Companies that made use of the government’s state aid measures could not proceed with redundancies or salary reductions for as long as the measures were applied. Companies that did not make use of said measures were able to proceed with redundancies or agree on salary reductions with their employees.

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

During the peak of the pandemic in Hong Kong (mid-2020), as many businesses were forced to suspend services for covid-19-related reasons, the government introduced the Employment Support Scheme (ESS). The ESS gave all eligible employers in the city the right to claim a subsidy of 50% of their employees’ wages for up to six months (with a cap of 9,000 Hong Kong dollars per employee per month). Employers who received subsidies under the ESS were prevented from making redundancies during the subsidy period, or else the subsidies would be clawed back.

In March 2022, the government announced that a new round of ESS will be launched in response to the fifth wave of covid outbreak in Hong Kong. Based on the government’s announcement, unlike the ESS in 2020, certain industries which are deemed to be less affected by the pandemic (such as supermarket and pharmacy chains, banks and financial institutions), would be excluded from participating in this round of ESS. The full details of this new around of ESS are yet to be announced, though it is expected that it will be open for application in April 2022.

The government has often reiterated that employers should try to avoid making redundancies during this difficult period, and that employers may wish to consider alternative options such as unpaid leave or reduced working hours instead. That said, the government has not legislated to prevent redundancies or changes to employees’ terms and conditions during covid-19, and so employers have had relative freedom to make such changes, subject to the normal rules regarding needing employee consent to make contractual changes (other than immaterial ones where the contract contains a right to make changes).

Last updated on 06/04/2022

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India

  • at Nishith Desai
  • at Nishith Desai

There were certain central and state government restrictions on employment termination in the form of government advisories during the first and second phases of covid-19-induced lockdown in India. Orders were passed by state and central governments on mandatory payment of wages to all employees during the period of such lockdown. As a result, several employers were left with no choice but to restructure their workforces through redundancies. Owing to the same, based on certain government orders as aforesaid (the constitutional validity of which are debatable and currently sub judice), employee unions in some Indian states such as Maharashtra (Mumbai and Pune) and Karnataka (Bangalore) have been actively taking up the cause of employees who have been retrenched or whose working conditions such as wages have been adversely impacted by employers during the pandemic. However, courts have upheld the employer’s rights in certain cases to deduct wages or pay reduced compensation to employees during lockdown in case of any default attributable to the employee (such as an employee’s inability to attend the workplace in an operating establishment, owing to any voluntary action) or with employee consent.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

There has been no change to underlying employment legislation or rights, save for the suspension of the right of an employee who has been temporarily laid off for more than four weeks to claim an entitlement to a redundancy payment. This suspension, introduced as part of a suite of emergency measures at the outset of the pandemic, has now come to an end.

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.

Last updated on 18/11/2021

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Italy

  • at Toffoletto De Luca Tamajo

During the pandemic and up to 30 June 2021 (and in some circumstances, until 31 December 2021) a dismissal ban was in force under which neither collective nor individual redundancies were possible.

On the other hand, in some cases, employers were able to reach agreements with their employees – mostly executives – for a reduction, or a deferral of the payment of the bonus due.

The main organizational changes that have been largely implemented are linked to (i) the implementation of a new working model base on the remote working and (ii) the massive use of the new social shock absorbers that has been granted by the Italian Government to the employers. Specifically, employers, through the so-called social shock absorbers, could suspend the activity of their employees without paying them and the employees received an indemnity from INPS (the Italian Social Security Body).

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

The federal government have reinforced the protective labour laws that prohibit redundancies and salary reduction as a general rule, stating that that the pandemic would not give legal cause for suspension of employment or dismissal. However, many employers managed to negotiate directly with unions or employees and introduced reduced temporary terms and conditions of employment that enabled companies to remain in business.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, regular rules on redundancy due to business or economic reasons remain applicable during the pandemic. However, if an employer has been applying for one or more of the different tranches of the Temporary Emergency Bridging Measure to Preserve Employment (the NOW scheme), which provide a payroll subsidy in a given period and is based on the employer’s (expected) loss of revenue, making redundancies could have consequences for the total amount of subsidies received. For each tranche of the NOW-scheme, different rules apply. Under the most recent NOW 6.0, which could be applied for until 13 April 2022, employers can reduce their loan costs (e.g., by reducing a maximum of 15% of its payroll) without affecting the subsidy received. However, this cost-saving method must be determined in consultation with employees or the works council or staff representation.

Employers can, in principle, only reduce employees’ wages and benefits with the consent of the employee, as this would concern a unilateral amendment of their employment conditions. Employers, furthermore, cannot unilaterally force employees to take unpaid leave or vacation days.

More information on NOW 6.0 can be found here

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

At the beginning of the pandemic in 2020, an employer could decrease working time by 50% and salaries by 20% and receive state aid to protect employees from redundancies; there was also temporary relief from paying contributions to the Social Security Institution (health and rent contributions). These programmes are no longer in force.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

During the pandemic, the government created a special and simplified lay-off system, aimed at maintaining jobs in companies that were totally or partially closed due to the imposition of the law. Under this system, employers could, in short, reduce the normal working time (daily or weekly) or suspend employment contracts.

Within this system, employers could reduce remuneration within certain limits: employees could earn at least two-thirds of their regular monthly remuneration, with a minimum amount of 635 euro in 2020 and 665 euro in 2021 and a maximum limit of 1,905.00 euro in 2020 and 1,995.00 euro in 2021.

Payments to employees were made by the employer, who received aid from Social Security corresponding to 70% of the costs. Employers were also exempt from social security contributions regarding employees under the simplified lay-off regime.

Other measures allowed for the reduction of salaries, namely extraordinary support for the progressive resumption of activity for companies with a temporary reduction of normal working times, which applied to companies not subject to facility closures, but that still had losses of 25% or more in a calendar month prior to the calendar month of the initial application or extension, compared with the same month of the previous year or 2019, or compared with the six-month average prior to that period.

Regarding the hours not worked under this scheme, employees were entitled to compensation of 80% of their gross pay paid by employers. If this sum represented a monthly amount lower than the employee's normal gross pay, the amount paid by Social Security would increase to cover the difference, capped at 1,995 euro.

Seventy per cent of the said compensation was borne by Social Security, with the employer responsible for the remaining 30%. Where the reduction in working time was more than 60%, Social Security support corresponded to 100% of compensation.

Please note that accessing these and other state support measures – not only labour and social security-based relief, but also some tax measures and tenancy benefits – meant employers could not terminate employment contracts based on collective or individual dismissal during the period they availed of said benefit and within 60 or 90 days after its end. Some support measures also forced employers to maintain current employment levels and limited, among other things, the right to terminate employment contracts by agreement (ie, in such cases, employers would have to repay the benefit that they were granted, either partially or entirely, depending on the situation).

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Generally, employers have the right under the Qatar Labour Law to terminate employment contracts. Any termination must be carried out in compliance with the terms of the Qatar Labour Law and the employment contract (including the notice period if applicable and the payment of all pending entitlements).  At the start of the pandemic, the MADLSA published guidance notes on their website that reiterated this and also stated that employers may mutually agree that workers take unpaid leave or use their annual leave if the business has been halted and the worker is not assigned any work. In such instances, employers were required to continue to provide all other benefits.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

On 6 April 2020, Ministerial Resolution 142906 was published amending the implementing regulations to the Labour Law (last issued in January 2019) by adding a new clause 41 providing for the following:

  • In the event the Kingdom adopts measures as recommended by an international organisation to provide for adjusted working hours or to avoid a situation falling under article 74(5) of the Labour Law, which provides for termination of employment because of force majeure, an employer will be able to agree to any of the following measures with an employee for a six-month period following the introduction of such measures:
    • reducing the employee's salary in correspondence with a reduction in the employee's working hours;
    • putting the employee on annual leave as part of his annual leave entitlement;
    • putting the employee on exceptional leave under Article 116 (unpaid leave) of the Labour Law.
       
  • Termination of employment following the implementation of such measures will not be justified if the employer received assistance from any government programmes during this period (ie, furlough programme). Furthermore, nothing in this resolution prevents or inhibits employees' rights to terminate their employment contract.

The Ministry of Human Resources and Social Development further issued an explanatory memorandum providing that the employer may unilaterally implement the measures introduced by article 41.  The above measures came to an end in January 2021.

Last updated on 15/03/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Since March 2020, under article 2 Royal Law-Decree 9/2020, employers cannot dismiss employees because of the covid-19 situation, and it is assumed that any dismissal since then is due to the pandemic. This means that employers must have strong reasons to justify dismissals to avoid them being somehow associated with covid-19. This prohibition is still in force.

The law does not specify whether breaching this prohibition should lead to the dismissal being deemed null or unfair. This has resulted in dissimilar high court resolutions: on the one hand, some have deemed dismissals null (forcing the employer to reinstate the worker and pay accrued salaries since the dismissal); and, on the other hand, some resolutions have deemed dismissals unfair (the employer can choose to pay severance for unfair dismissal or reinstate the employee and pay the salaries accrued since the dismissal). Until the Supreme Court rules on this matter, the consequences of breaching this prohibition are not clear.

Unlike dismissals, no other regulations specifically limit or prevent employers from changing employees’ labour conditions due to covid-19. Therefore, to implement any changes, employers should follow the ordinary procedure, which consists of justifying the change on business-related grounds and, if the decision affects at least 10 employees in companies employing less than 100 people; 10% of employees in companies employing between 100 and 300 people; or 30 employees in companies employing more than 300 people, then they must schedule a 15-day negotiation period with the workers’ representatives, although it is not mandatory to reach an agreement.

Most companies, however, have not made changes to their staff’s labour conditions, except for contract suspensions or recoverable paid leave.

Additionally, the government has passed several regulations since March 2020 (eg, Royal Law-Decrees 8/2020, 24/2020, 30/2020, 2/2021 and 11/2021) to provide specific and easier temporary contract suspensions for force majeure due to covid. These new regulations have mainly eased the ordinary procedure on temporary contract suspensions, and they have also allowed certain companies to obtain social security exemptions or reductions, subject to their commitment to not dismiss any employees whose contracts were suspended for six months after they resume work.

The Spanish government also passed Royal Law-Decree 10/2020, entitling certain employees to a recoverable paid leave between 30 March and 9 April 2020, which was the worst period of the pandemic. Workers were exempt from working without any impact on their salary, but they had to make up that time between the end of the state of alert and the end of the year.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

In April 2020, new legislation enabled employers affected by temporary and serious financial difficulties that could not reasonably have been foreseen or avoided (eg, due to the coronavirus situation) to reduce their employees' working hours and receive financial support from the Swedish government. The government covered three-quarters of the cost for the reduced working hours and the employer and employee shared the cost of the remaining quarter. For employers to receive support, the employer must have made use of other available measures for reducing labour costs, such as terminations of personnel not permanently employed and not regarded as being critical to business operations. The  possibility of receiving financial support under this legislation ceased to exist in September 2021.

New legislation on financial support has been proposed to apply from December 2021 to March 2022 for employers that have lost at least 30% in revenue. Affected employers will be able to receive support of 70% or 90 % (depending on the size of the company) of their fixed costs, such as salaries and rent, that they are unable to cover.  

The rules for termination of employment are the same regardless of the covid-19 situation. To terminate an “employment until further notice” under Swedish law, "just cause" is required. Just cause can either be related to personal reasons (eg, poor performance and misconduct) or redundancy. It is significantly more difficult to terminate an employee due to personal reasons (reasons relating to the individual employee) than due to redundancy. In general, termination due to personal reasons is considered a last resort by the courts. Redundancy on the other hand is deemed, as a main rule, to constitute just cause for termination of employment and there is no general obligation under the Employment Protection Act (EPA) to justify the redundancy (eg, with financial information or similar). The employer, however, must observe material and formal rules laid down by the EPA concerning redundancy terminations (as well as termination due to personal reasons).

Last updated on 24/01/2022

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Switzerland

  • at Lenz & Staehelin

Regarding wages, authorities have extended the use of pre-existing "reduced working hour allowances". This measure is intended to avoid dismissals following a brief but unavoidable absence from work. According to the system now in place, under certain conditions, employers have the right to (fully or partially) reduce the working hours of their employees and apply for allowances for reduced working-hour allowances. Those allowances cover up to 80% of wages related to the reduced hours. The hours effectively worked still are fully remunerated by the employer.

The Swiss Federal Council has decided to keep in place a procedure for a simplified calculation of the allowances for reduced working-hour allowances until 31 December 2022.

In addition, employees infected by covid-19 and unable to work due to illness are entitled to the payment of their salary under the same conditions as for any other illness-related incapacity. In particular, the salary would not be paid if an employee voluntarily travels to an area at risk or disregarded basic rules of caution and hygiene. If employees are stranded abroad because the authorities ordered a quarantine or return flights were cancelled, employers may refuse to pay their salary.

Last updated on 20/01/2022

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

In the scope of covid-19-related measures, the termination of employment contracts by employers was prohibited for three months from 17 April 2020, with certain exceptions. With further extensions, this ban was extended to 30 June 2021. Therefore, redundancies have been prohibited from 17 April 2020 to 30 June 2021, and any breach of this ban has been met with a fine. On the other hand, employers have been granted the authority to impose unpaid leave (without employee consent), partially or in full, on employees during this period. Up until the end of the termination ban, employees on unpaid leave have received a daily allowance from the Unemployment Insurance Fund.

Also, many companies chose to introduce salary reduction due to the economic pressure arising from covid-19 at the beginning of the pandemic by obtaining the written consent of employees.

In addition to the above, certain arrangements have been introduced to facilitate the requirements of short-time working applications, filed on the grounds of circumstances arising from covid-19.

Last updated on 21/09/2021

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UAE

  • at Clyde & Co
  • at Clyde & Co

In general, the UAE Labour Law does not recognise the concept of redundancy and as such where an employee is terminated for reasons of redundancy, this could give rise to a claim of arbitrary dismissal. However, in response to the covid-19 pandemic, in March 2020 the Ministry of Human Resources and Emiratisation issued Resolution No. 279/2020 concerning employment stability in private sector establishments. The resolution encouraged employers to implement a range of measures to mitigate the financial impact of covid-19 to avoid or reduce the need for layoffs and mutually agree the following measures gradually and in turn with their non-UAE national employees:

  • remote working;
  • paid leave;
  • unpaid leave;
  • temporary reduction of salary; and
  • permanent reduction of salary.

Consistent with normal contractual principles, the resolution required that, in all cases, employee consent to the arrangement is obtained, which should be recorded in writing by way of an addendum to the contract signed by the employer and the employee. In the case of a permanent salary reduction, the resolution required that permission be obtained in advance from the Ministry of Human Resources and Emiratisation.   

The resolution encouraged many employers to implement alternatives to termination where possible.  

While the resolution is no longer being enforced by the Ministry, nevertheless it is a helpful reminder of the possible alternatives to redundancy that an employer ought to consider.

However, termination of an employee’s employment in the UAE is a unilateral decision (meaning the employer and the employee do not need to agree to the termination for it to be effected), and as such an employee’s employment can be terminated at any time by the employer. Notwithstanding this, where the employee’s employment is terminated for a reason considered unfair or arbitrary by a court, the court can award compensation as a result.

Last updated on 08/11/2021

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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

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United States

  • at Littler
  • at Littler
  • at Littler

The pandemic has caused many companies to have to re-evaluate employee salaries and wages, and to make staffing changes. Where required by collective-bargaining agreements, these changes have resulted in bargaining with unions.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021