Patrolling the edge of legit and legal in employment relationship

After the declaration of the state of emergency in Serbia, caused by the global outbreak of the coronavirus, businesses introduced and implemented a series of extraordinary requirements, conditions and measures, some of which significantly affect and challenge the continuation of the traditional concept of employment relationship.

Under these circumstances, standard employment regulation has been, inter alia, altered by the adoption of Regulation on Organizing the Work of the Employer during the State of Emergency, which explicitly prescribes the duty of employers to enable employees to perform work outside the premises of the employer (teleworking and work from home), in all employment relationships where such work style could be organized and implemented. Taking this under consideration, the initial response from numerous employers was to follow the regulation and instruct their employees to work from home.

I) Employers’ Adjustments to the Newly Emerged Extraordinary Circumstances

Work from home is a type of engagement and labor that is identical, in terms of its material aspect and content, to the work performed at the employer’s premises. Therefore, employees are obliged to honor work discipline and perform work duties as contracted/required, and employers are obliged to fully compensate them for such conduct/performance (excluding certain items, such as travel expenses), in the same manner as if employees worked under regular conditions, in the office or elsewhere.

However, there is a real risk that business affairs would be obstructed by private life while working from home, in a manner that employees may end up losing efficiency, which in turn leads to the “gray zone” of mistaking work from home with vacation.

Delineation between work and vacation is also less present or even non-existent when employees need to withdraw from their job obligations for the sake of procuring the essentials, which can usually be done until 15:00 when most shops shut down, but anyhow before the total curfew which is enforced at 17:00 on each work day.

Work from home also implies that the employees are required to be available to their employers and clients through modern means of communication during the work hours, regardless if they have immediate work tasks to do or not.

On the other hand, if it is not possible to work from home, then it is up to the employer to decide whether to continue such operations, by adjusting the work process in accordance with the circumstances (reducing the number of workers in a shift, providing protective equipment to all employees, reducing the number of employees staying in the same office premise, etc.).

Furthermore, some employers may decide to reduce the scope of work, or even completely terminate work during this period, according to the Article 116 of the Serbian Labor Law. If the latter occurs, in this period employees are entitled to a salary compensation of at least 60% of their average salary of the previous 12 months, provided that it is not below the minimum wage. Therefore, it is entirely up to employers to set wages between 60% and 100% of the employees’ average salary for the previous 12 months.

II) The Complication of the Annual Leave 

But, adjusting business operations to the extraordinary circumstances is not the only difficulty employers are encountering.

Some employers may be concerned that, when the pandemic and emergency is over, and when regular work process finally gets restored, the employees would trigger their rights on annual leave. The justification for such requests could be found in the fact that stopping / reducing of work in the previous period was not their fault, and that during the summer and holiday season work is traditionally carried out in reduced capacity. From the employers’ point of view, absence of employees during summer holidays could result in additional adverse effects and further blows to their business, which have already suffered significant losses due to the extraordinary circumstances in the previous period.

For this reason, some employers have referred their employees (all of them, or employees working in the organizational units who are unable to perform business activities due to the state of emergency) to collective vacation during this period, which would de facto deprive those employees of their right to enjoy regular annual leaves during summer. In this case, the employer does not have the right to immediately send the employees on vacation, but is obliged to publish the decision on collective vacation on the noticeboard at least 15 days before the day designated for the use of such vacation, whereby the day of publishing is considered as the day of the handover of such decision to the employees.

However, there is no danger to employers in this regard, since the employee cannot solely decide when he or she will use the vacation, but this matter depends on the employer’s work requirement, therefore this is a decision of the employer. For the same reason, the employer may even change the time allocated for the annual leave use, determined unilaterally within the previously published decision, provided that the needs of the employer’s business activity require so. In this case, the employer is obliged to make this change no later than five working days before the day designated for the annual leave use.

III) Work Engagement During Vacation 

Regardless of the latter, it appears that a new form of “latent” work from home is emerging, disguised as “forced” vacation, which is the least favorable position for employees. This implies that the employees shall be on “annual leave” beyond their will until the emergency state is over, while the employer expects them to work from home as they have done so far.

This is a regular practice exercised by some employers even under regular circumstances, whereby they (whether a supervisor or some other colleagues) continue to call and demand employee’s services via e-mail or telephone, despite the fact that she/he is on vacation, for seemingly insignificant reasons or non-time consuming tasks which in fact often turn into hours of work during vacation, which ipso facto constitutes work outside the premises of the employer.

Sending an employee on vacation by definition implies that the employer, during that period, has organized work in such fashion that the employee’s services are not required (either a temporary replacement is found, or the employer stopped delegating work tasks to that employee during the vacation). If the employer is unable to organize work processes in a manner that enables the employee to take annual leave, the employer owes the employee a compensation for the unused annual leave in case of termination of employment, within the meaning of Article 76 of the Serbian Labor Law.

However, the most common situation in reality is sending an employee on vacation, while subtly expecting the employee to engage in work when needed, regardless of the fact that she/he is on vacation.

This expectation is no longer an exception, triggered by extreme urgency or exigent business, but with many employers has become a regular state of affairs.

In the West, the situation in this regard is different – predominantly because holidays are taken seriously and in the true sense of that word, while in the Balkans’ region most employers are pushing the boundaries of the legislation, justifying such behavior as legit (for they have still allowed the employee to use the vacation).

Is this kind of behavior and treatment permissible? What are the rights of employees in these circumstances, and what are the risks for employers that act in such way?

The provisions of the Serbian Labor Law are not aligned with the modern manner of working highly leveraged on contemporary means of communication, which enable an employee to work in the same way at the seaside, as she/he would do in the office, and allow the employer to contact the employee at any time, even when the employee is on vacation. This is a legal loophole in the current labor regulation that is often abused by some employers. Therefore, the issue of employee’s availability to the employer during the period when the employee is on vacation (daily, weekly and annual vacation) should be regulated by the employment contract itself, or by the employment rulebook with the employer.

Of particular interest to both employers and employees is the qualification of work performed during the vacation – is such work considered a part-time job, or perhaps an overtime?

In fact, it is neither.

Namely, the employer is not obliged to financially remunerate the employee for performance of this type of work, since such employee is sent on vacation by virtue of the employer’s decision and, in legal terms, “she/he is not working”. Therefore, performing work while on vacation is considered voluntary activity, and represents only a “gift” the employee gives to the employer. So, the only remaining hope is that the employer will remember and appreciate such a “gift”, and reward accordingly such a loyal employee with a bonus, promotion, or at least fairness or understanding during her/his tenure.

The positive thing is that refusing to complete a work assignment while on vacation is not a justified reason for termination of employment, because the employer’s decision on annual leave “protects” the “disobeying” employee from getting fired. But, unfortunately, this does not mean that in the coming period some employers cannot search and find a new reason for dismissal and terminate employment contract on that grounds, even though the real motive for dismissal is declining a work assignment received while enjoying a cocktail on the beach. Of course, such termination may be challenged before the court which would be obliged to establish whether the reason for dismissal in such a case was justified or not, which usually takes up considerable time to end.

For that reason, turning off a business phone and computer while on vacation is not the best solution for employees.

But, what is, in these situations, the best solution for both employers and employees?

It is our view that the best solution is communication, i.e. that the employee, in agreement with the employer, plans and organizes his duties in such a way that the work process is not hindered nor halted during the vacation, or that the employer does not need such employee during his absence whatsoever. This is doable, but the specifics will depend on a particular line of work. Generally, an employee should be efficient enough to complete all priority tasks before vacation, informing the employer and colleagues in detail about other assignments, deadlines for executions and any specificities that may be of significance in that regard.

Yet, if the employer, despite the demonstrated efficiency, continues to harass the absent employee for no valid or justifiable reason, there is a real risk of litigation in which, if such approach is qualified as mobbing and employer is found guilty, the court may order measures and award damages against the employer and in favor of the employee.

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