Widespread remote work as a result of the COVID-19 pandemic has led to new types of employment-related disputes. This round up of recent case law explores how some common issues relating to remote work have been treated by the courts in Russia over the past year.
Failure to formalise remote work
An employer's failure to formalise remote work in writing is misconduct, if an employee de-facto performs job duties remotely.
The employee was dismissed due to absenteeism. She did not agree with the dismissal and filed a claim with the court. The claim was supported by the fact that she de facto performed job duties remotely and communicated with the employer via phone and email.
The first level court rejected the employee's claim since the employment agreement did not contain the conditions on remote work.
The court of appeal disagreed, noting that the employer's failure to formalise remote work, in writing, does not indicate that the parties have not agreed on remote work, and cannot entail adverse consequences for the employee. The court also indicated that the employee had worked remotely for a long time, the employer calculated and paid her salary, which, taken together, means that the employer tacitly agreed on the existing working conditions.
Source: Appeal ruling of the Moscow City Court, dated 18 November 2020 in case No. 33-416582/2020
Fairness and proportionality
An employer must be guided by the principles of fairness and proportionality when disciplining an employee.
The employee's immediate supervisor agreed, via WhatsApp, that the employee could work remotely that day, due to being unwell. Subsequently, the employee was dismissed due to absenteeism. The employee challenged the dismissal in the court, claiming that the employer had agreed on remote work, and during the day the employee had properly completed work assignments. In addition, an extract from the employee's medical record confirms that, on that day, the employee attended a clinic with medical complaints.
The first level court recognised that the employee's dismissal, due to absenteeism, was lawful. The court of second level disagreed with this position and stated that the employee was absent, without an excuse, since he did not submit a medical disability certificate. However, considering that he had agreed remote working with his immediate supervisor and completed work assignments, the court came to the conclusion that the employer did not suffer negative consequences, due to the employee's absence in the office, and the court considered the dismissal was unlawful. The court noted that when imposing a disciplinary sanction, the employer must be guided by general principles of disciplinary responsibility, in particular, fairness, proportionality, legitimacy.
Source: Decision of the Moscow Regional Court, dated 14 October 2020 in case No. 33-26370/2020
Changing a remote employee's work arrangements
An employer cannot unilaterally change a de-facto remote employee's work arrangements.
The employee worked remotely for a year. However, the employer decided that the employee should work from the office and issued an order to this effect. The employee considered that it was illegal to change his work arrangements unilaterally and continued working from home. Since the employee did not come to the office, he was dismissed due to absenteeism. The employee challenged the dismissal in court.
The first level court recognised that the employee's dismissal, due to absenteeism, was unlawful. The court stated that the place of work had not been specified in the employment agreement. Since the employee was working remotely with the employer's knowledge, the employee was recognised as working remotely. This meant the employer was not in a position to change the employee's work arrangements unilaterally and, consequently, to dismiss the employee. The court of appeal agreed with this approach.
Source: Appeal ruling of the Moscow City Court, dated 12 November 2020 in case No.33-415385
Home workplace expenses
A remote employee cannot claim compensation for using personal equipment and arranging a home workplace, if s/he has not agreed these expenses with the employer.
During the non-working days of 2020, the employee was transferred to remote work. While working from home, he used his personal laptop, paid for the Internet, and purchased a desk. Since the employer refused to compensate the expenses he incurred, the employee made a claim in court.
The court of the first level supported the employer. The court outlined that the employment agreement did not provide for compensation for the claimed expenses, moreover, the employee could have asked the employer for a laptop and a desk but did not do so. The court of appeal validated this position.
Source: Appeal ruling of the Irkutsk Region Court, dated 15 February 2021 in case No. 33-1105/2021
Working somewhere not agreed with employer
Working outside the place agreed with an employer could be considered as a violation of discipline.
The parties agreed that the employee could work remotely from home. However, the employee travelled abroad and performed his job duties remotely by connecting his laptop to foreign, public Wi-Fi networks.
The employer's internal policies, with which the employee was familiar, provided that connection to unprotected, public Wi-Fi networks was prohibited. In view of that, and taking into consideration the fact that the employee changed the agreed remote place of work without the employer's consent, the employee was disciplined. The employee considered the disciplinary action was illegal and claimed this in court.
The court rejected the employee's claims, emphasising that the remote employee had no right to change his remote place of work at his own (sole) discretion.
Source: Decision of the Gagarinskiy District Court of Moscow dated 10 March 2021 in case No. 2-1435/2021
Special conditions for remote work
The creation of special conditions for remote work demonstrates the existence of an employment relationship.
The employee was hired 'remotely' during the period of restrictive measures to suppress the spread of ?OVID-19. The employee worked remotely and received his salary. After a while, the employee informed the employer of his voluntary resignation, both orally and via email.
The employer, in its turn, filed a claim to the court for unjust enrichment. The employer indicated that an employment relationship was not created, since the employee did not start to perform work duties on the commencement date, so the employment agreement was annulled. The employer stated that the company had mistakenly transferred funds to the employee's bank account.
The court found that the employer created an email address for the employee, the employee gained access to the employer's server and worked remotely from home on a personal laptop. Moreover, the employee took part in the daily meetings, during which he reported on current performance and received assignments.
As a result, the court rejected the employer's claims and concluded that the transferred funds should be considered as salary, paid in the context of an employment relationship.
Source: Decision of the Leninskiy District Court of the city of Orenburg dated 14 January 2021 in case No. 2-611/2021 (2-7109/2020)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.