In a recent internal email entitled: “Teleworking is no longer acceptable”, Elon Musk, the famous American billionaire leader of Tesla, demanded the return to work “for a minimum of 40 hours per week” and this in a main office linked to function and not in an unrelated secondary office.
Can a Belgian employer do the same with all of its workers and demand that they all return to the offices now that the Covid restrictions have all been removed?
To answer this question, it is first necessary to examine what has been agreed by the parties in the employment contract or by amendment.
The employment contract, always essential
If the employment contract clearly provides that the services will be performed in the company’s offices, in the absence of legal provisions derogating therefrom, such as those having imposed compulsory teleworking, the employer can obviously require that the provisions of the contract be respected and that the employee goes to the offices. The fact that the employer has left a little “margin” by tolerating telework for a time – without this having been formalized by an agreement or otherwise – does not necessarily imply that the employee would have a right acquired neither contractually nor even on the basis of custom.
In the event of the worker’s refusal, he is liable to a disciplinary sanction or, in the event of repeated refusal, to dismissal for serious reasons or a judicial resolution. Certainly if the employer can objectify his approach and that it does not constitute an abuse of rights.
If, on the other hand, the employment contract does not provide for or even confirms teleworking, the situation will be less easy for the employer. Collective agreement no. 85 relating to telework expressly provides that “Telework is voluntary for the worker and the employer concerned. Teleworking can be part of the initial description of the job or the worker and the employer concerned can voluntarily commit to it during the course of the employment contract. If telework was organized after entry into service, it will be necessary to check the conditions of telework and whether the employer has reserved the right to terminate it unilaterally. CCT 85 seems to require an “individual or collective” agreement but the provision seems to me supplementary.
On the other hand, if telework was agreed upon when hired, the employee may, depending on the recruitment context, defend that this condition of employment is essential – that he would not have contracted without it – so that a unilateral withdrawal from teleworking could be considered as an equipollent act with termination by the employer with payment of the notice indemnity or possibly as serious misconduct justifying the legal termination of the contract at the fault of the employer.
We will also have in mind the financial and organizational consequences of the end of organized teleworking in terms of travel costs and time, teleworking costs, etc.
We see it in Belgium, Musk or not, the mandatory return to work involves a case-by-case analysis to determine the rights of the employer and the employer.