September 2023 – On 12 September 2023, the Chamber of Deputies approved an amendment to the Labour Code after the legislation was returned by the Senate in July with several amendments. The Chamber of Deputies, however, ultimately approved the amendment in its original wording.
After it is signed by the President, the amendment will come in to effect on the first day of the calendar month following its publication in the Collection of Laws (likely still in 2023). However, certain provisions concerning agreements on work performed outside employment relationships (e.g. regarding annual leave) will take effect on 1 January 2024.
Major changes pursuant to the amendment to the Labour Code:
- Telework arrangements
- Restrictions on the flexibility of agreements on work carried out outside employment
- Extending the notification duty
- Electronic conclusion of contracts and electronic delivery
I. Telework arrangements
The current Labour Code does not contain a comprehensive telework regulation. The amendment seeks to remedy this deficiency (at least in part).
The amendment stipulates that telework will in principle only be possible on the basis of a written agreement between the employer and the employee. However, the amendment does not specify the particulars of such an agreement (apart from the mandatory written form) in any greater detail; that is why, it will be up to the parties to decide what they will include in their telework agreement. Drawing on our experience, we recommend that the telework agreement should contain at least:
- the place of performance of the telework (more than one such place may be agreed, both in the Czech Republic and abroad);
- the method of communication between the parties, the assignment of work and its inspection;
- the scope of the telework (e.g. specification of the week days on which the employee will perform the telework);
- the schedule of hours of work;
- OSH rules (may be replaced by reference to an internal regulation);
- the method of reimbursement of the costs associated with teleworking.
As regards the reimbursement of costs associated with the conduct of telework, the amendment allows the employee and the employer to agree that the employee is not entitled to reimbursement of costs related to the conduct of telework or part thereof. Otherwise, reimbursement of costs associated with the conduct of telework will be paid by the employer either (i) according to the actual and documented costs; and/or (ii) as a lump sum.
If agreed in writing or stipulated by an internal regulation, the employer will provide the employee with a lump sum for each, even commenced, hour of teleworking. The amount shall be set by the Ministry of Labour and Social Affairs by a decree on a regular basis from 1 January of the calendar year. Currently, the hourly lump-sum reimbursement is assumed to amount to CZK 2.80; however, the employer may also provide the employee with a higher lump-sum amount. If a lump sum is provided to the employee, it is considered to include reimbursement of any and all costs incurred by the employee in conducting telework.
An employee who carries out work for an employer on the basis of a work performance agreement or a work activity agreement may be reimbursed for the costs incurred in conducting telework provided that the employer has agreed such right with the employee.
The amendment stipulates that the teleworking agreement may be terminated by an agreement between the employer and the employee on an agreed date or may be terminated for any reason or without indicating any reason at all upon a 15-days' notice; the agreement and the notice of termination must both be in writing. The employer and the employee may agree on a different length of the notice period in the teleworking agreement; the notice period must be the same for both the employer and the employee. The employer and the employee may agree in the telework agreement that the obligation under the agreement cannot be terminated by either party, but this is not recommended for practical reasons.
If an employee taking care of a child under the age of nine, an employee taking care of a person dependent on the assistance of another natural person or a pregnant employee makes a written request to the employer to telework and the employer does not comply, the employer must give reasons for its decision in writing.
The amendment also allows the employer to order the employee to work from home in exceptional cases, in writing and only if a public authority so provides, for a strictly necessary period of time, if the nature of the work to be performed so permits and provided that the place of telework is eligible for the performance of the work.
II. Restrictions on the flexibility of agreements on work performed outside employment
The amendment foresees that employees working on the basis of agreements on work outside employment will also be subject to the regulation of hours of work, holidays, statutory allowances and obstacles to work on the part of the employee.
What does the above mean in practice?
After the amendment enters into effect, the employer will have to schedule work in writing not only for employees working on the basis of employment contracts, but also for those who work for the employer on the basis of agreements on work performed outside employment. Thus, the employer will be obliged to schedule the hours of work of the contracted employee in advance in a written schedule of hours of work and to inform him/her of the schedule (or any changes thereto) at least three days before the beginning of the period for which the hours of work are scheduled, unless the parties agree on a different (shorter or longer) period of providing such information.
According to the current wording of the Labour Code, contracted employees are only entitled to time off work in the event of important personal obstacles to work, such as medical examinations, accompanying a family member to an examination, etc. However, according to the amendment, they will have the right to be granted all obstacles to work. Contracted employees will also be granted extra pay or compensatory time off, or compensation for remuneration under the agreement, for working on public holidays, extra pay for night work, for working in difficult working environments and for working on Saturdays and Sundays.
Another change introduced by the amendment is the entitlement of contracted employees to holidays. Similarly to employees working under employment contracts, contracted employees will be entitled to holidays without any further requirements if the statutory conditions are met. For the purposes of holidays, weekly hours of work of 20 hours are considered to be weekly hours of work for contracted employees. It is irrelevant whether and to what actual extent of the numbers of hours per week the work was agreed in the agreement and conducted. In order for a contracted employee to become entitled to holiday, it is important that the labour-law relationship of the contracted employee with the employer under the same agreement lasts continuously for no less than four weeks (i.e. 28 calendar days) in the relevant calendar year and that the contracted employee has worked at least four times its notional weekly hours of work (i.e. at least 80 hours in the relevant calendar year). This includes compensatory time, e.g. when the employee does not work because of an obstacle to work or because it is a public holiday. Both conditions (continuous duration of the agreement and conduct of work) must be met simultaneously for the holiday entitlement to arise.
The length of the holiday entitlement of a contracted employee shall be determined as follows: for each full weekly hours of work worked, the employee is entitled to a holiday entitlement of 1/52 of that weekly hours of work multiplied by the holiday entitlement.
Examples of calculation of holiday for contracted employees[1]:
- An employee (a contracted employee) working under a work activity agreement had an agreed scope of work of eight hours per week, working regularly twice a week for four hours. He/she worked a total of 416 hours in the 2024 calendar year. The holiday entitlement is four weeks (4 x 20 = 80 hours). The employee has worked 20 times the notional 20-hour week (416:20 = 20.8). He/she will be entitled to 31 hours of holiday (20:52 x 80 = 30.77).
- An employee working on the basis of a work performance agreement worked 292 hours between June and September, i.e. 14 times the notional 20-hour week (292:20 = 14.6). With 80 hours of annual holiday entitlement, he/she was entitled to 22 hours of holidays (14:52 × 80 = 21.54).
Employees working under agreements on work outside employment will also have a new right to ask their employer to be re-allocated to an employment contract as a more secure form of employment. They will be entitled to apply for re-allocation to an employment contract if they have worked for the employer for at least 180 days in the last 12 months. However, the employer is not obliged to transfer the employee, but must notify them in writing why their request has not been granted.
III. Extending the notification duty
The employer already has a relatively broad notification duty towards the employee, which will be subject to further extension by the amendment.
First, the employer is obliged to inform the employee in writing of his/her rights and obligations arising from their employment unless the employment contract contains them. According to the amendment, the employer must provide this information to the employee within seven days (previously the deadline for providing information was one month) of the commencement of the employment, at the latest.
Pursuant to Section 37 (1) of the Labour Code, the employee must already be informed in writing by the employer at the beginning of the employment about an exhaustive list of facts. The amendment adds other obligations to this list, such as the obligation to inform the employee about the duration and conditions of the probationary period, notice periods and the procedure in case of invalid termination of the employment. If the above information changes, the employer is obliged to inform the employee in writing without delay, but no later than on the day on which the change takes effect.
The notification period runs from the first day of the conduct of work (i.e. the day the employee actually starts work) and is seven calendar days.
The information may also be provided to the employee in digital form, but always in such a way that the employee can save and print it for later use.
The extension of the notification duty will also apply to contracted employees. The employer will also have to inform them in writing of the exhaustive list of facts within seven days from the date of commencement of the conduct of work.
The Ministry of Labour and Social Affairs plans to publish model information containing all information that must be made available to the employee (contracted employee) at its website.
IV. Electronic conclusion of contracts and electronic delivery
The amendment should facilitate conclusion and delivery of certain key documents to employees, specifically documents relating to the creation and change of employment or a legal relationship based on an agreement on work performed outside employment; an agreement on the termination of employment and an agreement on the cancellation of a legal relationship based on a work performance agreement or a work activity agreement. The amendment allows for such bilateral documents to be concluded and delivered electronically. However, they must be delivered to an electronic address of the employee that is not available to the employer (typically a private email). The employee will be able to withdraw from agreements concluded in this way within seven days of delivery if he/she has not yet started the work under such agreement.
Unilateral documents – notice of termination of employment, immediate termination of employment, wage statements, removal from a managerial job position – will still have to be delivered to the employee in accordance with the stricter rules of the Labour Code. The amendment establishes a hierarchy of delivery that starts upon delivery to the employee only (in person) at the workplace. The employer may also deliver documents to the employee by electronic communication (to a data box or via an electronic communication network or service – e-mail), but only if the employee has consented to such a method in a separate written declaration, which may be revoked in writing at any time. Such declaration will also need to specify an electronic delivery address of the employee that is not available to the employer (such as private email). The employer must also inform the employee in writing of the conditions for electronic delivery before the consent is given. The employer may use Česká pošta for delivery only if it is impossible to deliver by any of the previous methods.
Electronic delivery is also subject to the employer's obligation to affix a recognised electronic signature to the document to be delivered. On the other hand, the employee no longer needs to include a qualified electronic signature to acknowledge receipt of a document sent electronically. At the same time, a new fiction of delivery has been introduced; that is why, no confirmation of receipt by the employee is required for valid delivery. If the employer does not acknowledge receipt of a document within 15 days of the date of its delivery (and the message is not returned as undeliverable), it is deemed to have been duly delivered on the last day of that period.
For further questions, please do not hesitate to contact our employment law team.