With social distancing becoming key in our country’s and indeed the world’s battle to control the spread of COVID19, many organisations have turned to remote working, in order to strike a balance between ensuring work continuity while safeguarding the health of their employees and the public at large.
The Maltese Government, through Malta Enterprise, has introduced a scheme to support employers and self-employed individuals to invest in technology that enables teleworking and to partially cover the cost of teleworking solutions. This call has been extended to the 8th May 2020 and applies to all undertakings irrespective of size and sector. More information can be accessed here.
Many employers may be regarding this sudden move to teleworking as a temporary measure, however, if properly implemented and regulated, teleworking could prove beneficial for both the employee and the employer in the long term and should be encouraged. Some benefits include increased working productivity, reduced operational costs such as lighting, heating and office space, less commuting and a better work-life balance.
Teleworking has been regulated in Malta since 2008 through the introduction of the Telework National Standard Order (S.L. 452.104), which lays down a number of legal requirements which must be observed when telework is being agreed upon.
How can telework be implemented?
Telework may be agreed upon either as a condition of employment upon commencement of employment, or in the course of the employment relationship. When it is agreed upon in the course of employment, teleworking is considered as entirely voluntary, in the sense that the employee is free to accept or refuse an offer of telework made by the employer, as is the employer if the employee expresses the wish to opt for telework.
Both the employer and the employee have a right to terminate a telework agreement by giving notice in writing either in terms of the regulation or as provided for in the telework agreement.
When a telework agreement is entered into, the employee’s employment status and his right to revert back to his previous post or, in the event that this is not possible, to another similar post, remain unchanged and the employee continues to enjoy all rights as any employee who is not performing telework and to be subject to the same policies.
What are the requirements of a telework agreement?
An agreement for the performance of telework must be in writing and must make provision for the following:
(i) the location where telework is to be carried out,
(ii)the equipment used for telework including its ownership, maintenance, liability and costs,
(iii) the amount of working time to be spent at the place of telework and at the workplace,
(iv) the schedule by which the employee will perform telework, where applicable,
(v) the description of the work to be performed,
(vi) the department of the undertaking to which the employee is attached, the employee’s immediate superior or other persons to whom the employee can report and reporting arrangements,
(vii) monitoring, if any,
(viii) notice of termination of telework agreement, and
(ix) in cases where telework is undertaken in the course of the employment relationship and there is no reference to teleworking in the employment contract, a reference to the right of reversibility by either party, including the right of the employee to return to his pre-telework post.
What are the respective rights and obligations of the employer and employee with respect to the equipment used to perform the telework?
Unless otherwise agreed upon by the employer and the employee in the written agreement on telework, the employer is responsible for providing, installing and maintaining the equipment necessary for the performance of telework and for providing the employee with an appropriate technical support facility. The employer is also required to cover any relative communication costs direcly arising as a result of the telework. On his part, the employee has a duty to take good care of the equipment and data provided by the employer. Costs of loss, damage to and misuse of the equipement and data caused by the empoyee shall be borne by the employee if these arise as a result of his negligence, and by the employer in all other cases.
Teleworking and Data Protection and Privacy issues
Employers are required to respect the privacy of their employees and to observe the requirements of the General Data Protection Regulation (GDPR)[1] and the Data Protection Act[2] whenever they are processing personal data and information of their employees. Any type of monitoring system will involve the processing of personal data and must be in compliance with applicable privacy and data protection principles. Any such system may only be put in place if it is agreed upon specifically in the telework agreement and is proportionate to the objective. A privacy impact assessment is always recommended whenever the implementation of such monitoring system is being considered. The law also provides that any monitoring system is to be in accordance with applicable health and safety regulations on the minimum safety and health requirements for work with display screen equipment.
An Employer is also under an obligation to have in place appropriate data protection policies and effective security measures with respect to the processing of personal data of third parties such as clients. These policies should also envisage the processing of such personal data within the context of the telework arrangement, and ensure that the employee is familiar with such policies and that the necessary measures are in place, also at the place where the telework is to be performed, to ensure that data is secure. Any such measures should be as effective as those applicable at the primary workplace. Especially in this time of crisis, organisations may be particularly vulnerable to phishing emails which are on the rise, and extra precautions must be taken to ensure that businesses are not further negatively impacted by data breaches.
[1] REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
[2] Chapter 586 of the Laws of Malta
If you are interested in implementing a telework policy or require further information or assistance contact Dr. Rita Mifsud, Dr. Simon Galea Testaferrata or Dr. Romina Bartolo or send us an email on info@iurismalta.com.