Remote work-litigations

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Remote work can give rise to complex situations.

A district court in the Netherlands was called upon to rule on the “right to work remotely”.

  • the employer: Modis a large company carrying out activities in the field of personnel services, inter alia making staff available to third parties
  • the user: the Dutch office of the European Space Agency (the European Space Research and Technology Center-ESTEC)
  • the employee: UK national employed in the Netherlands, and made available to ESTEC in the latter country

As a consequence of the pandemic crisis, as of March 2020 and to January 2021, the employee was asked (and subsequently allowed) by the ESTEC and allowed by Modis to work from home in the UK.

It is worth noting that the “UK home” element was not really disputed, although Modis argued that the agreement between the parties was that the employee will work for Modis in the Netherlands, based on a Dutch employment contract, tax and social security contributions will be paid in the Netherlands, and the employee will settle in the latter country.

As of 19 January 2021, the employee was (still) allowed to pursue work from home by the ESTEC, however, the employer (Modis) requested him to resume working in(from) the Netherlands.

To support that decision, Modis invoked the expected impact of pursuit of work from home in the UK on tax liability, and on the social security subjection (additional burden for the employer).

The employee persisted in challenging that decision on grounds of i) personal family situation related to the pandemic crisis, and ii) general situation related to the pandemic crisis, and iii) the fact that the user pursues the telework policy.

Modis decided to enforce rights set forth in the employment contract, notably unpaid leave, and subsequently request to the District Court of The Hague to terminate that contract.

In addition to the recovery of unpaid remuneration supplemented by penalty, the continuation of the employment by Modis and of the assignment to the ESTEC while working from home in the UK, the employee claimed to obtain an overview of all the employment conditions of the ESA, as they applied at the time of the commencement of his employment, and as they “currently” apply to the employees of the ESA holding equal or comparable functions (claim dismissed by the court).

In a provisional ruling (after a Skype hearing), the court found that Modis’ allegations are not enough substantiated, and consequently:

  • ordered Modis to pay the outstanding remuneration and a statutory increase
  • sentenced Modis to make the employee immediately available to the ESA, and to allow him to carry out his work for the ESA/ESTEC from the United Kingdom until the Corona measures in the Netherlands and the United Kingdom will be relaxed

Beyond “Brexit scenarios”, the case of remote work in a Member State other than that in which the employer is established is far from being settled on EU level.

When assessing applications for Portable Documents A1 under Art 12 of Regulation 883/2004, social security authorities of certain Member States, are looking into the reason why remote work will be carried out. In simple words, distinction is made between employees asked to work remotely for business reasons, and those merely allowed to work remotely (if no business reason evidenced). Only the first category is eligible for A1 certificates.

The ECJ might disagree with that approach. In his Opinion delivered on 8 March 2017, in X v Staatssecretaris van Financiën (C-570/15), AG Szpunar stated:  

I observe that it is one of the advantages – or, for some people, a curse – of the digital economy, that an employee may be asked or allowed to accomplish a part of his office tasks while away from the office, possibly, by working from home”.

In my view, the employee’s convenience, if not at odds with the employer’s needs, and where the criteria from Art 12 of Regulation 883/2004 are met, represents a legitimate business reason.

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals