In the new Coronavirus reality, many employees cannot continue their standard work because their standard business environment has ceased to exist. Business meetings, travels, and visits have been significantly restricted, and trade-fairs and conferences are now completely impossible.
The question is whether an employer can freely change the type of benefits provided to their employees, or whether they have to observe the formalities resulting from the Labour Code.
As is often the case in law, there is no simple answer to this question. Everything depends on the purpose for which the benefit was granted to the employee in the first place. If, for example, there is a sales representative who has received a company car for the purpose of visiting clients, and, due to the Covid-19 pandemic, this employee now only works remotely and organises only on-line meetings with clients, the employer can choose to take the car back from the employee since, currently, the company car is no longer needed as a tool work. This will usually require amendments to be made to the employment contract in which the parties will alter the scope of the employee’s duties as well as the tools ensured by the employer in the new business situation. The simplest way is to conclude an annex to the existing employment contract; however, this requires the employee’s consent first. If the employee does not agree, the changes to the benefits can be made by using a so-called amending notice of the employment terms and conditions. If the employee has a permanent contract, the employer will have to indicate the reasons for amending the contract. If the employee refuses to accept the new employment terms, the contract will expire upon the lapse of the notice period.
Should an employee reject the amending notice – if the changes to the benefits were caused by economic or organisational reasons and are detrimental to the employee – there is the risk of having to pay out a statutory severance. This obligation only applies to companies which employ up to 20 people. The maximum amount of the severance is currently capped at the level of 39,000 złotys (around £7,800). In 2021, this amount will rise to 42,000 złotys (£8,400).
If the employer provides smaller benefits to their employees, for example multisport cards, additional insurance, or parking cards, and these benefits have not be mentioned in the employment contract or remuneration regulations, the employer has more flexibility to change their scope or to resign from them entirely.
This can simply be done by sending an email communication to the employees and informing them that these additional benefits will no longer be available.
If additional benefits, even if minor, are mentioned in the employment contract, they then constitute part of the employment terms and conditions and therefore belong to the elements of remuneration. Their change requires, once again, either the employee’s consent or the use of an amending notice. It should be stressed that the mere transition of an employee to remote work does not justify depriving said employee of these benefits based on the employer’s unilateral decision.
If a firm employs more than 50 people and has introduced remuneration regulations with all the benefits stipulated therein, it will be necessary to change the remuneration regulations first in order to make any amendments to the scope of benefits granted by the employer. After this, in the second step, amendments to the employment contracts can now be carried out. In this situation, the employer does not need to present any additional economic or organisational reasons for amending the benefits. It is sufficient to mention in the annex to the employment contract or in the amending notice that the changes to the benefits result from changes in the remuneration regulations.
Entrusting new tasks
Quite often our clients ask whether, during the current Covid-19 pandemic, they can require from their employees the performance of duties other than those which were carried out before the current crisis.
Where a change of tasks is only temporarily required, for a period of up to three months, the answer is quite straightforward. According to the Labour Code, an employer can move their subordinates to other work without asking for their consent, provided that the following three conditions have been met: 1) the entrusting of other work to an employee is justified by the employer’s business needs, 2) it does not decrease the employee’s remuneration, and 3) it corresponds to the employee’s qualifications. If, after three months, the company wishes to continue employing this person in their new position, it will then be necessary to obtain the employee’s consent, or submit an amending notice to them.
An employee’s refusal to perform tasks due to fear of contracting Covid-19
In the current situation, which is full of anxiety and uncertainty, it can occur that an employee will refuse to follow their employer’s instruction to perform their current or new duties due to fear of contacting people and becoming infected. We have observed that employees often do not wish to give up remote working and return to the office, although this might be required from the employer’s perspective. Managers should remember that remote working is only a temporary solution. It is not the employee’s right, but rather the employer’s entitlement to order working from home during the Covid-19 pandemic and for a further three months after its official end. Therefore, the employer can decide to stop remote working at any time and request that its employees return to the office, or to go on a business trip if direct contact with customers is necessary. The employer’s primary duty is to ensure safe and hygienic conditions at the workplace, and to organise the employees’ duties in such a way that potential threats have been eliminated, and possible preventive measures have been taken. We all know that, due to Covid-19, additional obligations are specifically entailed in providing employees with hand sanitizers, masks, and maintaining a distance of 1.5 m from their work stations. The employer can also introduce other rules to protect the health of their employees as long as they do not infringe on the freedom or privacy of their team members. If the employer organises the work appropriately, the employee cannot argue that they are afraid of contracting Covid-19 and, therefore will not follow their employer’s instructions. In this situation the employer should talk to the employee and make them aware that the pandemic does not release them from the obligation to perform their duties in the manner indicated by their supervisor. In extraordinary cases, the employer can consider giving the employee a warning letter, or a more formal reprimand for not observing the employer’s guidelines.