On Tuesday 19 September 2023, an amendment to the Labour Code was published in the Collection of Laws, which responds primarily to European Union directives on working conditions, work-life balance for parents and certain aspects of working time. Most of the changes will come into force on 1 October 2023. We will now look at the main changes brought about by the amendment.
Fixed-term and shorter working hours will have to be agreed in writing. Until now, a written form was not required. However, the vast majority of employers already cover these areas in their employment contracts, so in practice, nothing much will change.
Continuous rest between shifts is replaced by continuous daily rest and the length is the same as under the previous legislation, i.e. 11 hours. The main reason for the change is to ensure that the employee actually rests for 11 hours at a stretch. According to the current legislation, it is theoretically possible to order overtime within these 11 hours. This will no longer be possible. Moreover, the emphasis is also on ensuring that rest is actually taken and not just ‘scheduled’.
The continuous weekly rest period has been formally reduced to 24 hours due to previous CJEU case law, but it is now stipulated that it must include continuous daily rest, so the original 35 hours (24+11) remains. Here too, the emphasis is on rest being actually taken, not just scheduled.
It shifts the burden of proof from the employee to the employer on other matters, as has long been the case with discrimination. A list of these new situations is set out in the Code of Civil Procedure – Section 133a(3) of Act No. 99/1963 Coll.
Information on the content of the employment relationship
The employer is still obliged under previous legislation to inform the employee about certain aspects of the employment relationship. This list of information is now extended. At the same time, the period within which the employer must provide this information is changed from 1 month to 7 days from the commencement of the employment relationship. The information can be provided electronically, but the employer must allow the employee to save and print the information and must keep proof of the transmission of the information.
If the time limit for providing information on the content of the employment relationship under the original legislation has not expired by the time the amendment takes effect, the employer will still provide the information under the amendment. Likewise, if an old employee requests information under the amendment, the employer is obliged to provide it within 7 days of the request.
Changes to the FTE and FTE
The employer will now be obliged to schedule the working time of the work performance agreements (WPA) and work activity agreements (WPA) no later than 3 days before the beginning of the period for which the time is scheduled unless both parties agree on a different time.
If an employee whose legal relationships based on work performance agreements and work activity agreements have lasted for a total of at least 180 days in the previous 12 months with that employer requests in writing to be employed by the employer, the employer shall be obliged to provide a reasoned written reply within 1 month at the latest.
In some cases, the employer will be obliged to justify the termination of the agreement if the employee so requests. The justification must be provided within 1 month.
The later effective date of the law provides that agreement employees will be entitled to leave in the same way as salaried employees. It is understood that for the purposes of leave, the length of the weekly working time will be 20 hours.
It is expressly introduced that agreements will be entitled to extra pay for working on holidays, at night, at weekends and in difficult working environments.
Agreements will also be entitled to time off work in the event of obstacles on the part of the employee, but will no longer be entitled to wage compensation.
Agreements will also now be subject to an information obligation similar to that of employment. The time limit is the same – within 7 days from the date of commencement of work.
Home office and flat-rate reimbursement of expenses
Teleworking or home office has been refined. Home office will only be possible by written agreement. Exceptionally, the law will allow an employer to order a home office if a public authority so provides (e.g. during an epidemic). However, an employee may declare that he or she has no such place where he or she can perform home office duties.
A written home office agreement will be terminable by agreement or unilateral termination with 15 days’ notice. It will be possible to agree on a different length of notice or to agree that the home office agreement cannot be unilaterally terminated at all.
If there are existing employees working in a home office without a written agreement or if such an agreement does not meet the requirements of the amendment, such an agreement must be drawn up within 1 month of the amendment coming into force.
In connection with the home office, the provision for reimbursement of expenses when working from home is also amended and the possibility of using a lump sum is introduced. It should be noted that the existing Section 190 regulating compensation for wear and tear of own equipment remains unchanged and is not affected by the new provision on compensation for homeworking expenses.
It will be possible to use the lump sum in lieu of actual proven expenses, but it will not be an obligation. Employers may still reimburse actual and proven expenses.
The use of the lump sum must be agreed in writing with the employee or determined by an internal directive.
A flat rate will be paid for each hour of home office work. The amount of the lump sum will be set by the Ministry of Labour and Social Affairs by decree on 1 January or at an extraordinary date. For this year, the flat rate is CZK 4.60 per hour, but we must wait for the Ministry of Labour and Social Affairs to officially confirm this value by decree.
The employer and the employee may agree in writing that the employee is not entitled to reimbursement of all or part of the costs related to the home office. The employee will therefore be allowed to waive this right. The Explanatory Memorandum indicates that this may also apply to the aforementioned costs for wear and tear on the home office equipment.
A lump sum may be provided but the amount above the statutory limit will already be taxable. The amount up to the statutory limit will not be considered as subject to tax.
A lump sum may also be provided to FTEs/STFs if agreed with the employee.
Changes in parents
Parents will now have to apply for parental leave at least 30 days before taking parental leave unless there are serious reasons for not doing so. The request must now be in writing and include the duration of the parental leave.
If a pregnant employee, an employee caring for a child under the age of 15, or other selected groups of employees request shorter working hours or a modification of working hours, the employer must comply with the request unless serious operational reasons prevent it. This already applies now. However, the employer will now have to provide written reasons for refusing such a request. At the same time, the employer will also be obliged to return the employee to his/her original working hours at the employee’s request. If the employer refuses to do so, it must give reasons in writing.
A new option is introduced to request telework for a pregnant employee, an employee caring for a child under the age of 9, or other selected groups of employees. The employer must give reasons in writing for any refusal of such a request.
Please note that if the employer grants the request to reduce working hours, a written agreement must be concluded.
Certain documents that must be served under the special legislation of the Labour Code are omitted and will thus be regulated by the general provisions of the Civil Code. This concerns, for example, documents relating to the creation and change of the employment relationship, an agreement on the termination of employment or a record of a breach of the temporary incapacity for work regime.
Electronic service of documents, including data mailboxes, will now be equated with personal service of documents at the workplace. Service by post will remain a secondary method of service, i.e. it will only be possible to use it in cases where service at the employer’s workplace is not possible.
Newly, if a document is delivered to an employee electronically (for which consent is still required in a separate written declaration), it will be deemed to have been delivered on the date on which the employee acknowledges receipt by a data message, and the acknowledgement message will no longer be required to be signed with a recognised electronic signature, as before.
A fiction of delivery is also introduced. If the employee does not acknowledge receipt, the document will be deemed to have been delivered on the 15th day after delivery, but the drafters themselves point out the difficulty of proving the date of delivery of a data message by e-mail. The burden of proof will be on the employer.
If the employer wishes to deliver electronically, it will now have to inform the employee in writing of the conditions for delivery of the document via an electronic communications network or service, including the fiction of delivery (on the 15th day after delivery).
The employer will also be able to deliver documents to the employee’s data mailbox without the employee’s consent, but only if the employee has not opted out of the delivery of documents from non-public entities. Similar rules apply to service on an employer.