Having being approved by the Cyprus House of Representatives on the 16th of November 2023, the Law which provides for the Regulation of the Framework for the Organization of Teleworking Law of 2023 [Law 120(I)/2023] (the “Law”) is now in force with effect from 1st December 2023.
The Law governs the rights and obligations of employers and employees when they agree to teleworking.
It applies to all employees, regardless of the place of employment, including persons working by virtue of an employment contract or relationship or apprentices, full-time and part-time employees, employees of fixed or indefinite term and employees working on a continuous or non-continuous basis. It also includes persons working in legal entities governed by public law or local authorities. In particular, the Law covers private sector employees, public law legal entities and local self-Government authorities, but it excludes:
(a) civil servants, including employees of the workers' service, employees whose remuneration is calculated on a daily basis, employees recruited on a temporary basis in the Public and Education Service;
(b) teachers of the public education service;
(c) employees of public emergency services;
(d) employees of the armed forces and police authorities;
(e) judges;
(f) investigators; and
(g) employees of other law enforcement agencies.
The Law does not mandate teleworking. Rather, teleworking can be adopted on an optional basis provided that it is agreed in writing between the employer and the respective employee. Such an agreement can be reached upon the employee’s appointment, by amendment of the employment contract or by collective agreement. Under no circumstances can teleworking adversely affect the terms of employment. Under this basis, the Law prohibits any discrimination against employees who do not consent to teleworking.
Provided that the work can be provided remotely, teleworking may be applied:
(a) following an employer’s decision, for the protection of public health and subject to the issuance of a relevant decree of the Minister of Health pursuant to the Infectious Diseases Law, for the period specified in the aforementioned decree; and
(b) at the employees’ request, in case of a documented risk to their health, which is avoided if they work through teleworking as opposed to the employer's premises, for as long as the said risk lasts.
On this, the Law clarifies that in case an employer disputes the existence of such risk, employees shall have the right to contact an approved doctor for the purpose of documenting the risk to their health from the work environment or in relation to the type of work that is performed. At the same time, the Law entitles employers to request a relevant examination by a Medical Council as provided for in accordance with the provisions of the Social Insurance (Medical Councils, Secondary Medical Council and Medical Specialists) Regulations.
Teleworking costs and employer's obligation
As far as teleworking costs and employer's obligations are concerned, the employer is obliged to:
(a) bear the cost borne by employees from teleworking and including the cost of equipment. This would not apply if there is agreement for the use of the employer's equipment, telecommunications and domestic workplace, and the maintenance of equipment and repair of faults.
(b) provides employees with the necessary technical support to perform their work. In case of failure of the employer’s devices used for the performance of the employees’ work, which is not due to the employees’ fault, then the employer is obliged to pay the repair costs or to replace them. The obligation also applies to employees’ owned devices, unless otherwise specified in the employment contract or relationship or if the damage occurs by reason of the employees’ fault.
It is noted that the above-mentioned expenses incurred by the employer do not constitute remuneration. Rather, these are deductible expenses for the employer, and are not subject to any tax or fee nor are insurance contributions owed to the employer or employee. Such expenses are calculated proportionally in terms of the frequency and duration of telework, the provision or not of equipment and any other relevant element.
Obligation to inform teleworking employees
The Law requires the employer to inform in writing teleworking employees of the working conditions as these will be differentiated by reason of teleworking within eight (8) days from the date of commencement of teleworking. This applies notwithstanding the provisions of The Transparent and Predictable Working Conditions Law of 2023.
This information shall, at least, include the following:
(a) the right to disconnect;
(b) the analysis of the costs as these will periodically burden the teleworking employee from teleworking, including telecommunications costs, equipment and maintenance, and the ways of covering these costs by the employer;
(c) the equipment as this is necessary for the provision of telework, which is available to the teleworking employee for the employer’s benefit or as this is provided by the employer, to the employee as well as the procedures for technical support, maintenance and restoration of faults of this equipment;
(d) any restriction on the use of computer equipment or tools, including the internet and any penalties in case of violation of such restriction;
(e) the agreement on tele-readiness, its time limits and the deadlines for the employee's response by teleworking, in compliance with the provisions of the Working Time Organization Law;
(f) the risks and protection and prevention measures during teleworking based on the written risk assessment;
(g) the obligation to protect and secure the professional data and personal data of the teleworking employee and the actions and procedures followed to fulfil this obligation; and
(h) the supervisor from whom the teleworking employee will be receiving instructions.
Rights and obligations of teleworking employees
Teleworking employees have the same rights and obligations as those of comparable employees within the employer's premises. Such rights and obligations include those in relation to their workload, evaluation criteria and procedures, rewards, access to information concerning the employer, training and professional development, trade union activity and unhindered and confidential communication with their trade union representatives.
Evaluating the performance of teleworking employees
The employer shall evaluate the performance of teleworking employees in a way that respects their privacy and protects their personal data.
In this regard, the employer is explicitly prohibited to monitoring employees through the use of a camera or other similar application of an intrusive nature for the purposes of checking the employee's performance.
Health and safety at work
Pursuant to the provisions of the Law, and in compliance with the provisions of the Safety and Health at Work Law and the regulations issued pursuant thereto, employers must, inter alia:
(a) have at their disposal an appropriate and adequate written assessment of the risks involved with teleworking;
(b) determine the preventive and protective measures to be taken on the basis of the written risk assessment; and
(c) provide such information, instructions and training to ensure the safety and health of their employees.
Right to disconnect
Teleworking employees shall have the right to disconnect from the electronic means through which they provide their services remotely using technology for the purposes of applying the provisions of the Transparent and Predictable Working Conditions Law of 2023.
It should be stressed that any discrimination against teleworking employees for exercising their right to disconnect is prohibited. The technical and organizational means, as these are required to ensure the disconnection of the teleworking employee from the digital communication and work tools, must be agreed between the employer and the employees' representatives and shall constitute mandatory contractual terms of the teleworking contract. For the avoidance of any doubt, in the absence of an employment agreement between an employer and teleworking employees, the means shall be determined by the employers and communicated by them to all their employees.
Appointment and powers of inspectors
Pursuant to the Law, the Minister of Labour and Social Insurance appoints inspectors for the purposes of performing their duties, responsibilities and powers under the Law. Such inspectors have the usual powers of inspectors which include, without limitation, powers to:
- enter without notice during the day or night time at any workplace outside the domestic premises; (entry to a residence is made after obtaining the consent of its holder), accompanied by a police officer if they believe that they will be hindered in their work;
- carry out such checks, investigations, inspections, interrogations or examinations as they deem necessary, in particular they may require persons to answer relevant questions and sign statements; and
- require the presentation of a book, file or other document or data necessary for monitoring the application of the Law, which require the posting of announcements.
The inspectors may receive complaints for breaches of the Law either by persons who consider themselves affected by a violation or on behalf of such persons. Upon receiving such a complaint, the inspectors, in exercising their powers, must investigate the complaint. If the dispute is settled, they shall draw up minutes as to the settlement of the dispute which must be signed by both the employee and the employer. If the dispute is not settled, they shall draw up minutes stating all their actions and conclusions they have taken which could be used before the competent court.
Offences
With regard to inspectors, a person who:
(a) obstructs inspectors in the exercise of their powers;
(b) refuses to answer or responds falsely to any inquiry;
(c) fails to produce any record, certificate, book or other document or record required to present, obstructs; or
(d) attempts to prevent any person from appearing before or being examined by an inspector
is guilty of an offence and, if convicted, is subject to imprisonment not exceeding six (6) months or a fine not exceeding Ten Thousand Euros (€10,000) and/or both of these penalties.
In case the criminal offence is committed by a legal person or organization, any person who at the time of the commission of the offence holds the position of adviser, chairman, director, secretary or other similar position in the legal person, or appears to be acting in that capacity, shall be considered guilty of the same offence, unless they prove that the offence was committed without their consent or complicity or negligence and is subject to the above penalties.
In terms of offences towards employer, an employer who violates any of the provisions of the Law shall be guilty of an offence and, if convicted, shall be liable to a fine not exceeding €10,000.
Author of the article: Andria Kouloumi
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Andria Kouloumi, Associate in our Limassol office Telephone +357 25363685 or email Andria.kouloumi@kyprianou.com