In early April 2023, the government of the Czech Republic approved a draft of an extensive and long-discussed amendment to the Labour Code, moving it further along in the legislative process.
Status of the amendement
With the exception of some changes, which we draw your attention to later in this article, the amendment was approved to the extent that resulted from the comment procedure. Its current wording thus represents a compromise solution between the state authorities and interest groups, which have committed themselves on the basis of an informal agreement not to seek any further amendments.
Despite this gentleman’s agreement, it can be expected that debates will take place in particular in relation to teleworking or the digitisation of employment documentation, areas that should be included in the Labour Code beyond the changes transposed by European directives, i.e. Directive 2019/1158 of the European Parliament and of the Council on work-life balance for parents and carers and Directive 2019/1152 of the European Parliament and of the Council on transparent and predictable working conditions in the EU.
A major change compared to the original proposal is the determination of the amendment’s effective date, which in most cases should occur on the first day of the first calendar month following the date of the law’s promulgation, thus shortening the legislative period by one month. For some provisions of the law (e.g. in the case of leave), the new effective date would be the first day of the calendar year following the date of promulgation of the law.
Nevertheless, it can still be assumed that the amendment could enter into force almost entirely in the autumn of this year, with the exception of those provisions which would not enter into force until the following year, 2024.
Overview of expected changes
Below is an up-to-date overview of the major changes based on the latest version of the draft amendment, which has been approved by the government of the Czech Republic and has moved on to the legislative process in the parliament of the Czech Republic.
Assuming that the draft amendment has not been significantly amended in the subsequent stages of the legislative process, the above changes could already represent the final form of the long-awaited amendment to the Labour Code; however, amendments and modifications to the law cannot be ruled out.
- Employer’s information obligation
Employers will be obliged to inform their employees of their substantive rights and obligations arising from the employment relationship within a shorter period than is currently the case, probably within 7 days of the commencement of the employment relationship, i.e. within a significantly shorter period, which is currently 1 month. In the event of any changes occurring during the course of the employment relationship, employers should be obliged to inform their employees of such changes no later than on the day they take effect.
At the same time, the scope of the mandatory information to be communicated will be expanded, as a result of which employees should be informed, for example, about the duration and conditions of the probationary period, professional development (if provided), the extent of the minimum continuous daily/weekly rest period or the provision of meal and rest breaks.
If employers provide this information in electronic form, employees should not only be able to access it but also be able to save or print it.
The information obligation should now also apply to employees on FTA and FTE, who should be informed in writing by the employer of their working time schedule or any change to it at least 3 days before the start of the shift or period for which the working time is scheduled. This time limit, which has been reduced from the original version of the proposal, which provided for 7 days in the context of the consultation procedure, should not apply only if the employer and the employee agree on a different period of notification.
- Significant changes in the area of agreements outside the employment relationship
Employees working on the basis of a FTA and FTE should expect many more fundamental changes to be reflected in their employment relationship, especially in order to provide a higher level of protection.
One of the key changes is undoubtedly the introduction of holiday entitlement, which should accrue to employees on a a FTA and FTE of employment under similar conditions to those of an employment relationship based on an employment contract. For the purposes of calculating leave, the so-called “universal formula” will be applied, whereby employees on FTE and FTE may be entitled to up to 80 hours of leave per year when working full time. For practical purposes, it is then proposed that the holiday leave should come into force on a later date, as mentioned in the introduction, namely on the first day of the calendar year following the date of promulgation of the law.
In addition to the leave, employees on a FTA and FTE should also be entitled to other entitlements, in particular the right to sick pay, the right to certain allowances (for night work or on public holidays) or the right to work-related obstacles (visits to the doctor).
The amendment should also introduce the institution of transfer to another form of employment into the Labour Code. This institution should allow employees on a FTA and FTE to request a transfer from a FTA and FTE to a form of employment with more certain and predictable conditions after a certain period of service. However, such a request should only be possible on condition that the employment relationship based on the agreement has lasted for at least 180 days in the preceding 12 months. The employer should always be obliged to respond to the request and to provide the employee with a reasoned written reply within 1 month of receipt.
Last but not least, a higher level of protection should also be guaranteed to employees on FTE and FTE in relation to the termination of the employment relationship. Thus, employees on FTA and FTE should have the right to request the employer to provide written reasons for termination, in particular if they consider that they have been terminated for exercising certain of their rights under the Labour Code.
- New rules for applying for parental leave
Currently, the application for parental leave is not regulated by the Labour Code in any way, i.e. employees can apply for parental leave in any form (written or oral), and at an unspecified time.
In this respect, the amendment should lay down clear rules requiring such a request to be made in writing, indicating the intended duration (i.e. its beginning and end), and should be submitted at least 30 days before the start of the leave, except for serious reasons on the part of the employee. There should no longer be any limitation on the submission of the application itself and employees should be able to submit it repeatedly and thus extend their existing parental leave.
The information provided in the application should be binding on both parties, which should significantly ease the position of employers, especially with regard to planning departures and replacements, although the date of return is already binding in practice.
- Digitalization of labour law documents
The amendment should also bring significant facilitation with regard to the planned digitalization of employment documentation, which should enable both the electronic conclusion of contracts with employees and the electronic delivery of documents.
Electronic conclusion of employment documentation
In the first place, it should be possible to conclude bilateral employment documents relating to the creation or change of the employment relationship (e.g. employment contract or amendment thereto) electronically, either by e-mail or data mailbox. The employee should be able to withdraw from such a document within 7 days, provided that the work has not been commenced.
Electronic delivery of employment documents
Digitalization should also be reflected in the possibility of electronic delivery of unilateral employment documents falling under the stricter regime (i.e. in the employee’s own hands), which continues to include documents relating to the termination of employment or legal relationships based on a performance or work agreement, removal from or resignation from a managerial post. Compared to the original draft of the amendment, these documents should no longer include, for example, a record of a breach of the temporary incapacity for work regime of an employee, while, on the other hand, wage and salary statements have not been excluded from the list of important documents, despite numerous comments from employers.
In the case of electronic delivery of the above-mentioned documents, prior consent given by the employee in a separate written declaration should be required, which would also specify an electronic address for delivery that is not available to the employer (typically a private e-mail). The employee should be able to withdraw such consent at any time, with effect from the time of withdrawal. Conversely, for the remaining documents, i.e. documents that have been removed from the “stricter regime”, a simple electronic signature should be sufficient.
In addition, all electronically served documents should be subject to the fiction of service, which has been extended from 10 to 15 days from the date of dispatch, compared to the original draft amendment.
- Modifying remote working
Beyond the transposition of European directives, the amendment brings another fundamental change consisting in the establishment of more detailed rules for remote working.
The main prerequisite for its exercise should be a written agreement concluded between the employee and the employer. The current version of the amendment, however, does not provide for the mandatory elements of such an agreement, and therefore it should be left entirely to the discretion of the parties as to what they agree on. In order for the agreement to actually fulfil its purpose in practice, we definitely recommend sticking to the original list of mandatory elements and agreeing in the agreement at least on the place of remote work, the manner in which communication between the employee and the employer will take place, the manner of assigning work including subsequent control, or the scope of the work to be performed including the scheduling of working hours.
In the context of the settlement of the comments, other requirements imposed on the employer in relation to teleworking have also been abandoned: the employer should no longer be obliged to ensure not only those employees are not denied contact with other employees, but also to provide the technical and software equipment necessary for the performance and protection of data and data processed by remote transmission.
It should be possible to terminate the agreement by giving 15 days’ notice, from which the parties could contractually deviate, but only on condition that the length of the notice period is the same for both parties.
It should also be possible to order employees to remote work, but only if the cumulative fulfilment of the statutory conditions is met, namely (i) if a measure of a public authority under another law so provides; (ii) for the period of time strictly necessary; (iii) if the nature of the work performed allows it; and (iv) the place of telework is suitable for the performance of the work. The current draft amendment makes these conditions even stricter, as the employer should not be entitled to determine the place of performance but should always be obliged to invite the employee to determine such place in writing without undue delay.
Significant changes have been made in relation to the method of reimbursement of expenses, which are not only newly regulated in a separate provision, but at the same time there has been a change in their content, even after the draft has already been published after approval by the government of the Czech Republic.
A fundamental change is the possibility for the employer and the employee to agree in writing not to pay the reimbursement. In the absence of such an agreement, the possibility of lump-sum reimbursement or reimbursement of costs demonstrably incurred by the employee in connection with the performance of remote working should be maintained. At the same time, the specific flat-rate amount of CZK 2.80 has been deleted from the proposal and should be redefined by a decree of the Ministry of Labour and Social Affairs on the basis of data published by the Czech Statistical Office.
Employees should be able to request remote working in writing, and this benefit should only apply to a select group of employees, including pregnant employees, employees caring for a child under the age of 9, or dependents. At the same time, these employees should have the right to have the employer give written reasons for any refusal of their request.
Conclusion
From the above overview of changes, it is already clear that significant changes in the area of labour law are expected in the coming period, for which it will be necessary to prepare appropriately to some extent.
We will therefore continue to monitor further legislative developments concerning the amendment to the Labour Code closely and will inform you again in the event of any changes. At the same time, we are preparing another labour law breakfast for you in June 2023, with this amendment being one of the main topics.
Should you have any questions about the content of the current amendment to the Labour Code, please do not hesitate to contact our PEYTON legal team at any time.
Mgr. Kateřina Lansdorfová, junior attorney – lansdorfova@plegal.cz
Mgr. Jakub Málek, managing partner – malek@plegal.cz
28.04. 2023