UncategorizedCOVID-19 AND WORK ONLINE

TELEWORKING

 

The health crisis that our country is currently experiencing has presented Tunisian companies with new challenges to preserve both the safety of their employees and the continuity of their business.
From the point of view of labor law, each of the Parties, i.e. the employer and the employee, have obligations to respect in the event of a health crisis. Thus article 152-2 of the Labor Code (hereinafter referred to as “LC”) provides that «Every employer is required to take the necessary and appropriate measures for the protection of workers and the prevention of occupational risks. In particular, he must:
Ensure the protection of workers’ health in the workplace, ».

Considering this article, the Employer is therefore entitled and obligated to put in place all measures required to protect its employees, particularly in the current case of the Coronavirus Pandemic.
For his part, the employee must respect the measures taken by the employer. To this end, article 153 (3) of the Labor Code provides that «The worker is required to comply with the requirements relating to health and safety at work and not to commit any act or failure likely to impede the application of these requirements». In particular, it is required to:

• Carry out the instructions relating to the protection of his health and safety, as well as those of the employees working with him in the company,
• Use the means of prevention available to them and ensure their conservation.
• Participate in training cycles and information and awareness activities relating to health and safety at work that the company organizes or adheres to,
• Immediately inform his immediate supervisor of any observed deficiency that could lead to an OHS hazard,
• Submit to the medical examinations prescribed for him/her»

It therefore follows from this article that, since the employee is under an obligation to carry out the instructions and decisions taken by the employer, in order to prevent any risk to the health of all employees, the employee’s refusal to comply with these requirements could be regarded as serious misconduct justifying dismissal.

Thus, for those companies whose activity allowed it, teleworking was the solution and they had to set up the necessary procedures in a very short period of time.
However, teleworking, like work on company premises, is subject to labor law, although the Tunisian Labor Code is silent in this area.

 

The Regulatory and Legal Framework for Telework

 

Telework can be defined as «work at a distance, using technological progress and consisting of no longer being permanently present (in whole or in part) in a company and carrying out a professional activity (in whole or in part) elsewhere (at home, at a client’s premises, etc.) using computer and telecommunications tools».
However, in Tunisia, telework is rather considered as a new form of work, to which, in the absence of specific laws, existing laws apply.
In addition, the teleworker enjoys the same collective and individual rights as the employees present in the company, and by application of the notion of social public order, the employer may not, on the occasion of a telework contract, restrict the rights resulting from the application of the Labor Code and Collective Agreements.
Employers who use telework must ensure that they respect the fundamental rights of their employees, specifically the right to privacy and the right to inviolability of the home as protected in the Tunisian Constitution. In this context, the employer must ensure that its policies and procedures related to the application of telework respect the right to privacy and the right to inviolability of the home (e.g. use of the Internet and e-mail, password management, ownership of computer equipment).
The employer will have to ensure the employee’s consent to telework, either by an explicit e-mail exchange requiring the employee’s consent by return e-mail, or by an addendum to the employment contract, however as mentioned above the employee’s refusal to perform telework in case of force majeure and, for reasons of health risks, can be considered as serious misconduct.
The employer has the right to supervise and control the work of his employees (in accordance with Article 6 of the LC). However, it must ensure that he does so in a manner that respects the privacy of the Employee, by respecting and putting in place clear procedures that will be communicated to the Employee.
The employer will have to respect the working hours (right to disconnection in the context of telework).

The employee is obliged to carry out his work with care and diligence, to act with loyalty.
Concerning the use of information having a confidential nature which he obtains in the performance or in the course of his work, and the protection of data belonging to the Employer, which is essential for the Employer, it will be necessary to check what is provided for in the Company’s employment contracts, in the absence of a clause explicitly providing for the confidentiality and protection of data belonging to the Company, it would be advisable to remind all employees of this obligation by email and to have written feedback from them. Thus, in the event of infringement of this rule, the employee engages his civil liability on the basis of Article 88 of the Code of Obligations and Contracts.
Furthermore, the employee is liable for the consequences of failure to comply with the instructions he has received, when they are formal and there are no serious grounds for departing from them, and must ensure that he keeps the things handed over to him for the performance of the services for which he is appointed. He must return them after completion of his work and is liable for loss or damage attributable to his fault.

The implementation of specific procedures to telework within the company

 

It would be advisable to publish an internal company guide setting out the telework policy and providing, inter alia:
• Obligations and duties of both parties
• Methods of employee control over the performance of the work to be performed,
• Daily feedbacks
• Confidentiality
• The essential need to protect data
• The definition of working hours
• A reminder of the responsibilities and commitments of all parties
• The choice of the communication modes used and the frequency of contacts
• Procedures in case of an accident at work or illness
• Equipment for the practice of teleworking
• The data confidentiality charter
• Define and monitor the employee’s tasks and objectives while teleworking
• Determine productivity and performance expectations.

This guide will have to be distributed to all employees and carry their explicit acceptance by return email. It would also be advisable to implement an electronic signature, so that, any signature of the employee on a contractual document is authenticated.
As a reminder, Article 453 bis provides that: « An electronic document is a written document consisting of a set of letters and numbers or other numerical signs, including the one exchanged by the means of communication, provided that it is of intelligible content, and saved on an electronic medium that guarantees its reading and consultation if necessary. An electronic document is evidenced as a private document if it is kept in its final form by a reliable process and is reinforced by an electronic signature. »

The law 2000-83 of August 9, 2000 grants to the electronic signature and the electronic document, a legal value and a sure probative force subject to respect of certain conditions:
• The preservation of the electronic document must be ensured by the parties having concluded it.
• The electronic signature can only be made by a reliable device2 whose technical characteristics are fixed by decree.

• In addition, an amendment to the employment contract may also be considered.

 

• In the absence of legal provisions laying down the mandatory information to be included in the telework contract or addendum, it is advisable for the parties to include specific clauses in the addendum to the employment contract in order to provide greater clarity on the reciprocal obligations of each of the parties, such as :
  • The conditions for switching to telework as well as the conditions for returning to performing work at the office,
  • Charges and costs related to telework: the parties may, if they wish, provide for a clause relating to the assumption of costs related to telework (hardware, software, internet subscription, telephone line and bills, etc.). When computer equipment is made at the employee’s disposal, the employer is advised to adapt the insurance taken out in order to extend it to cover risks that may occur in the employee’s home, in particular theft of the equipment.
  • The management of working time: teleworking poses the difficulty of time management insofar as the employee is not physically present on the company’s premises. In France, an electronic time clock system or a self-declaration system is generally used, whereby the employee regularly declares the number of day-hours worked and/or rest on a “time” software. These two methods could be applied by the employer in Tunisia to overcome this difficulty.
  • Confidentiality and data protection: the employer and the employee must ensure the security of the computer equipment used in order to avoid any leakage of data or documents that could cause harm to the company or its employees.

The Company will also have to ensure the protection of its personal data through secure channels. In this context, several Tunisian operators have set up offers allowing teleworking in complete security.