TELEWORK AND ICT-BASED MOBILEWORK (TICTM) CHALLENGES

Existing EU and national legislation, policies and collective agreements address some of the challenges of TICTM work arrangements. Although at European level there are no specific legislative measures targeting TICTM, there is robust legislation on working conditions that can be applied to these new working arrangements, e.g. the Working Time Directive, the Work-life Balance Directive, the Transparent and Predictable Working Conditions Directive, the European Framework Directive on Safety and Health at Work. In addition, there is a large set of EU initiatives and policies addressing the digital divide and need for digital upskilling, improving connectivity and broadband coverage and accessibility, promoting and supporting gender equality and equal opportunities for all, and addressing territorial inequalities. The European Social Partners' Framework agreements on telework (2002) and on Digitalisation (2020) also address many of the TICTM related issues on a wide range of aspects associated with such work.

The situation is rather complex and diverse when considering individual Member States. Given the growing importance and use of TICTM, many Member States have introduced a number of national policies and laws both pre- and during the COVID-19 pandemic. The adopted national approaches are quite varied, reflecting the great diversity of Member States in terms of their institutional, legislative, industrial relations, cultural, contexts together with their different stages of digital development.

Eight Member States (Belgium, Czech Republic, France, Italy,  Lithuania, Spain, Poland and Portugal ) have introduced legislation directly addressing TICTM and the related work-life balance aspects, while 13 others (Austria, Bulgaria, Estonia, Germany, Greece, Hungary, Luxembourg , Malta, Netherlands, Romania, Slovenia and Slovakia) regulate aspects of such work, with no direct link to work-life balance arrangements. The six remaining Member States (Cyprus, Denmark, Finland, Ireland, Latvia and Sweden) have no legislation pertaining to TICTM work, which is either regulated by social partners through collective agreements at national, sectoral and/or company level as in Scandinavian countries, or through 'softer' measures, e.g. codes of conduct or guidelines, as in Ireland. Despite these national differences, in most EU countries, collective agreements are the main instrument for shaping the use of teleworking and remote working using ICTs and the link between these forms of work and work–life balance arrangements in practice. In addition, at company level, multinationals and large companies have introduced company specific teleworking arrangements, often prompted by the experience of distance working during the COVID-19 pandemic. A number of companies have also sought to limit or eliminate out-of-hours contact (e.g. emails) along the lines of a right-to-disconnect approach (e.g. Volkswagen). There are also examples of company initiatives aimed at preventing domestic violence as in the case of L'Oréal and of protocols signed by private companies and public organisations to prevent digital harassment of workers, as in the case of Spain. In recent years the right to disconnect has emerged in legislation, collective agreements and company practices in an attempt to mitigate the harmful effects of TICTM work, addressing the blurred boundaries between work and home life and the need to safeguard the non-working time of employees. For example, France is the first country that adopted legislation (in January 2017) limiting work-related after-hours electronic communication and including a right to disconnect (droit à la déconnexion). Belgium, France, Italy and Spain have introduced legislation which explicitly promotes the use of ICT as a way of supporting flexible working, associated with the right to disconnect that seeks to protect workers from the potentially negative consequences of being constantly available online. In a number of other Member States (Denmark, Finland, Ireland, Lithuania, Luxembourg, Malta, Sweden, and Slovenia)  there has been a lively debate about the right to disconnect, with Germany, Malta and Ireland, putting forward legislative proposals in late 2020. The effects of TICTM for workers, employers and society pose a number of challenges for regulation and policy making at EU and national level asking for new strategies and approaches. The debate among EU and national stakeholders focuses on whether there is need for new EU regulations targeted at TICTM workers or if it is sufficient to update existing ones, avoiding the risk of excessive and overlapping regulations and promoting a better balance between hard and soft intervention approaches, including the role of collective bargaining. The implications of TICTM for work intensity, working time, work-life balance, and health and safety can be addressed by proper application of the EU regulations and policy instruments already in place, as long as they are revised in order to explicitly tackle the specificities of TICTM work arrangements. For example, the Directive on minimum requirements for safety and health at the workplace should take into account home and co-working spaces as working places. The way the EU Directives are transposed, implemented and complemented by national legislation is also to be considered. To this end, the Commission could issue further clarifications to Member States about the various directives and support them in implementing national legislation addressing TICTM work arrangements. However, there is need for a more comprehensive European regulation on telework, including minimum requirements for the right to disconnect, leaving their implementation to Member States, given the wide diversity of approaches and measures taken by EU countries on these issues. In addition, there is need for the EU to establish specific employee rights that have relevance for TICTM, such as those related to employee surveillance and monitoring associated with the use of new technological devices, digital tools and remote control software. Legislation has not, to date, explicitly addressed their implications for workers, although EU legislation can play a role, most notably through its 2018 General Data Protection Regulation (GDPR). The European Data Protection Board (EDPB) announced in April 2020 its intention to produce guidelines on: (i) the use of geolocation and other contact tracing tools and apps; (ii) the processing of health data for scientific research; and (iii) teleworking. Discussion is also on-going on how to support greater worker involvement and representation in the health and safety aspects of TICTM, the use of surveillance data and the right to disconnect, to address the current information asymmetry and inequality between employers and workers on surveillance data and workers' privacy rights. Among the existing European directives, framework agreements and strategies that can be related to TICTM, those considered 'quite useful' or 'very useful' are the European Framework Agreement on Telework and the 2020 European Social Partners' framework agreement on digitalisation, as well as EU programmes promoting investments in broadband/digital infrastructures and the reduction of digital and territorial inequalities. There is a need for specific initiatives at EU level to meet the challenges associated with TICTM work, and particularly for legislation and directives, although the majority of the social partners opt for soft regulations and social dialogue. Representatives of the EU social partners underline the risk of excessive regulation and ask for a greater role of collective agreements, also as regards issues related to the right to disconnect. In addition, trade union representatives hold the view that future agreements should focus on: the right to telework and to disconnect; equal pay and treatment (also in terms of working hours) between teleworkers and other workers; company support for the training and equipment needed to telework; ways to address invasive surveillance and to guarantee tele-workers the right to privacy and data protection, and to be protected against cyber-harassment/violence. An open issue is, however, the quality of social dialogue and the capacity of social partners across Member States to cover all workers, including those working in SMEs and in those countries where the social partners have a very limited role.

New policy approaches are also needed to address the societal implications of increased use of teleworking. The potential inequalities emanating from the lack of digital skills in the population and limited access to ICT, should be considered together with support for the enhanced (employment) opportunities that these new forms of work offer to groups previously excluded, e.g. women and persons with disabilities or persons living in peripheral and rural areas. For example, the negative aspects of teleworking from home, e.g. loneliness, social isolation, inadequate space and equipment, could be overcome by supporting the creation of appropriate neighbourhood co-working spaces, a more accessible and improved provision of fast and reliable broadband connections, as well as neighbourhood child-care and public services, the re-design of housing and mobility policies, and support to workers in digital upskilling and for the improvement of work space and equipment at home.

Policy implications for EU Institutions

There is a need for all relevant stakeholders at both EU and national levels to address all aspects of teleworking in a comprehensive, fair and equitable way. EU institutions could have a key role in facilitating these developments, supporting and complementing the actions taken by the Member States and the social partners through:

• Revising and enforcing the legal and policy framework at EU level to take into account the specificities of TICTM work arrangements, including minimum workers' rights (e.g. right to telework and right to disconnect; data protection and privacy rights; prevention of cybersecurity threats), and the prevention of negative mental and physical health effects of TICTM. As underlined by Eurofound (2020a), the implementation of EU legislation on health and safety protection in multiple locations may be particularly challenging, as it requires the development of specific guidance and training for both workers and managers/employers. Developing and implementing psychosocial risk assessments at company level could provide support and identify and mitigate possible health risks for remote workers.

• Strengthening policy strategies and financial support to address the societal implications of extensive use of TICTM, enhancing the employment opportunities offered by such forms of work on the labour market and enhancing the social inclusion of currently marginalised groups and territories, and mitigating possible negative effects. This requires: investing in the (digital) upskilling of workers and companies and in improving broadband connection and access; supporting the provision of appropriate equipment and ICT devices, and the creation of neighbourhood coworking spaces and (child)care services; and supporting the re-design of housing, mobility and spatial planning policies. There are many EU initiatives and programmes addressing these issues, although these are fragmented into different policy strands; in order to ensure consistency and effectiveness, it would be useful to develop a dedicated Action Plan on TICTM with clear targets, support to Member States for implementation, and a specific monitoring system.

• To improve the implementation of revised regulation and policy strategies, EU institutions should oversee the proper implementation of key directives, such as the Working Time Directive and the Work-Life Balance Directive. They should also support Member States and the social partners with guidance on the applicability of existing rights and obligations (including on how employers can comply with data protection privacy and Occupational Safety and Health (OSH) regulations, together with awareness raising measures targeted at TICTM workers about their rights, the health and safety implications of TICTM, and ways to reduce these risks. Awareness raising and training measures should also target SMEs and managers to familiarise them with the importance of new 'more collaborative and less hierarchical' organisational cultures and the establishment of trust-based relationships in working organisations increasingly involving TICTM working arrangements.

• Another key role of EU institutions is to improve knowledge on TICTM and its effects, providing reliable and accessible data and information on TICTM trends and related policy developments, supporting mutual learning, the exchange of good practices, and capacity building among EU and national stakeholders, including social partners and companies (particularly SMEs). To achieve this, EU and national institutions, together with the social partners, should review the lessons learned from the pandemic on how management and workers transitioned to teleworking and evaluate the effects of the legislative and policy measures adopted, in order to use these experiences to adjust existing policies and/or design new policies.

• Social dialogue and the active involvement of the social partners at company and sectoral level should also be supported, given their crucial role in ensuring the implementation and enforcement of workers' rights on the ground, identifying and addressing the specific challenges occurring at the workplace with respect to occupational safety and health conditions, work-life balance, equal working conditions, equal pay and career progression opportunities for all workers.