The Labour Code is too rigid, say experts

Because the labour law is old, it addresses issues affecting factories, but not tech companies

Before Covid-19 outbreak, regulation of home-office working was inadequate, say experts.Before Covid-19 outbreak, regulation of home-office working was inadequate, say experts. (Source: Unsplash)

This article was published in the Career & Employment Guide 2023, our special annual publication focused on the labour market, human resources and education.

Even though the arrival of ChatGPT and other artificial intelligence chatbots has caused alarm, lawyers specialising in labour law do not see a need to address this issue in the Labour Code yet. Addressing the correct use of AI by means of internal AI policy is, they say, sufficient for the moment.​

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​“Employment law has not directly addressed the increased use of social media either,” said Katarína Matulníková, the new managing partner at Wolf Theiss’ office in Bratislava. “Of course, every employer will instruct its employees on proper use of AI, for example not to use names and confidential or sensitive information while using it.”

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The Slovak Spectator spoke with Matulníková and Zdenka Hrubešová, legal director at Dell in Slovakia, about labour legislation in Slovakia, its differences compared to other countries, regulation of home-office working, and more.

What problems in the field of labour law are most troubling for companies or employees in Slovakia?

Katarína Matulníková (KM): The biggest issue is that the Labour Code does not reflect the needs of employers in the 21st century and is very rigid. The Labour Code was, in general, written for manufacturers or production plants. For IT houses (like Dell) operating globally and striving for unified systems and operations it creates many issues that need to be tackled, even though some of the IT houses here in Slovakia are among the biggest operations of their mother companies in Europe. Digitalisation and computerisation have not been incorporated into the Labour Code yet and, at the same time and in some instances, it is overprotecting employees. The latter tendency seems to be being broadened thanks to the predominantly pro-employee approach of the Slovak courts. The protective element is needed and understandable as the employee is the weaker party in [employment] transactions, but on the other hand, in today’s informed society, it is very rarely the case that an employee really has no idea what his or her rights are. Quite the opposite.

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Zdenka Hrubešová (ZH): In terms of the Labour Code, legislators should sort out the philosophical question of whether we are going to regulate this in great detail or very broadly. And then, if the broad approach is chosen, let’s give employers the space to draw up their own guidelines. Then the labour inspectorate can come and check whether the guidelines are in line with the Labour Code or not. Supervisory bodies should play the role of partner, even though I realise that there are also not only good but also bad employers. But the Labour Code cannot be made only for the bad guys.

How do you see the current regulation of home-office working?

KM: Before Covid-19 outbreak, it was inadequate. The amendment triggered by the pandemic situation improved it significantly. But as the use of home office expands there are new issues that need to be addressed. The so-called pandemic home office keeps enabling employees to be permitted to work from home if operational reasons do not prevent this, and the employer cannot order him or her to go to the office. This regulation pertains to the so-called emergency situation. Such a state continues to be in place in Slovakia due to the war in Ukraine, even though there are no such pandemic risks as there were when the Covid-19 crisis erupted. It is time for the rights and duties of employees and employers to be somehow better balanced.

Are there any other problematic points in the home-office regulation?

ZH: Yes, coverage of increased costs on the side of employees working from home. The legislation is very vague on this point and it is up to the employer what level of risk it dares to take on. The legislation speaks about coverage of increased costs, but it does not specify how to calculate the increase of costs in case an employee works from home. Employers have taken two approaches. One is that it is up to the employee to show and prove this increase. The second approach is that the employer pays a set flat sum. Then there is a question whether tax offices will recognise such payments as justified costs on the part of the employer.

KM: Another issue is health and safety in case of working from home or telework, to use the correct legal term for working from home using IT infrastructure, i.e. the equipment, the ergonomics of the workplace, and so on. It is very difficult to find a reasonable middle ground between not being too intrusive in terms of employee checks, but at the same time not being too gullible. Neither legislators nor supervising bodies are clear on this. It will be very interesting to see what home-office working will bring in the long run in this respect, in terms of injuries or vocational diseases.

Another not yet properly addressed issue are so called digital nomads, i.e. people working from places or countries of their choice. The current legislation is insufficient, as this issue does not only pertain to the Labour Code but expands to taxation and social security contributions. One would expect this to be addressed at the EU level, but its legislative process is very slow.

Is the current legislation pertaining to employment of Ukrainians in Slovakia following the outbreak of the war in Ukraine sufficient, or are there any aspects that need to be addressed?

MK: This legislation provides Ukrainian refugees simplified access to the Slovak labour market. This is well justified, given the situation in Ukraine. But, the interim measures are, by definition, intended for a limited time. The development of the situation in Ukraine and its progress towards fulfilling the requirements for EU candidacy will shape the status of the regulation further.

Could you compare labour law in Slovakia with labour laws abroad?

ZH: The general differences between labour law in America and Europe is that in America

there is much less protection for the employee and that the social security of employees is not as protected as in Europe. If we take the labour law here in Europe, in the western part of Europe, such as Germany, France and Great Britain, for example, severance pay is much higher there than in the countries of central and eastern Europe, i.e. the Czech Republic, Poland and Slovakia. There is also a difference in the protection of employees during organisational changes. A quite important difference between the Czech Republic and Slovakia is in the obligation in Slovakia to offer another job; there is no such obligation in the Czech Republic.

What exactly does the obligation to offer another job entail?

ZH: This institution means that when a company makes an organisational change, on the day it communicates the notice to the affected employee, it should offer him or her an alternative, reasonable and suitable position at the company that is now vacant. However, there are several interpretations of this obligation. One of them is that the experience and education of the employee should be taken into consideration and the position offered should be in line with these. However, case law indicates that the company could offer a CEO, for example, the position of a cleaner. The case law simply says that any post should be offered for which the employee is medically fit.

KM: Another problem is that IT houses like Dell use job ads to find out whether there are certain capabilities available on the Slovak labour market for new projects or for activities they may win within their groups. Then, it is very difficult to explain in court proceedings commenced by employees claiming unfair dismissal that the employer did not breach its duty to offer other suitable jobs to the employee – because the advertised job simply does not exist: the company was only screening the market, and only when the relevant skill is found to exist can the job be created.

How do you assess the functionality of whistleblowing legislation in Slovakia?

KM: Slovakia is a pioneer in this respect because it, contrary to other countries, adopted a law on protection of whistleblowers as early as in 2015. Now an amendment has been tabled, to be adopted in May, and if all goes well the regulation will improve further.

ZH: What is often omitted is that whistleblowing is not about the employer getting a police tool enabling it to look for the perpetrator of misconduct. It is about ethics and culture. Whistleblowing is not paid snitching, as is sometimes perceived. It is an extremely valuable source of information about what is going on within a company and what the culture in it is like.

Do you consider the legislation in Slovakia related to trade unions to be sufficient?

ZH: This legislation is very vague and therefore allows for different interpretations, and this then has an impact on the length of collective bargaining negotiations.

KM: The process of setting up a trade union is poorly regulated, creating ample room for speculation. Slovakia deserves substantial revitalisation of the process of launching trade unions and of collective labour relations in general.

Does the current labour legislation react to the penetration of artificial intelligence into the field of labour law and HR?

KM: No, but I do not think it has much reason to as artificial intelligence is or will be basically a working tool. Employment law regulation has not directly responded to the increased use of social media either. Sophisticated employers have social media policies and I would expect the use of AI to be regulated similarly. Besides this, regulation of AI will firstly be adopted at the EU level. There is already a draft text of regulation, called the “AI Act” in place. It will cover a number of areas, but not the area of private employment relations.

Is there not a need for employment law to address employee behaviour on social media?

KM: No. If an employer wants its employees to behave in a certain way on social media, it will make a social media policy or an internal regulation with rules that its employees should observe. Here I see two groups of regulations. The first applies to certain categories of employees who in fact represent their employer by how they behave in their private life, and this might sometimes be on the edge. The second pertains to behaviour at work, and here regulating an employee’s behaviour is completely legitimate. The employee may use social media as a working tool, have a company account connected to the company’s email, and so on. Here the employer can clearly regulate what the employee can or cannot do, and possibly have a control mechanism and access to the account. In this way they will avoid a situation in which, for example, an employee leaves the company with all its contacts.

ZH: This is again a general philosophical question of what needs to be addressed by the Labour Code and what companies can actually address on their own in their internal regulations.

What problems do your clients most often turn to you with?

KM: I would divide them into a number of groups. The first one features issues related to standard employment law. This includes documentation, home-office-related matters, internal regulations or review of employment contracts. The second group comprises disputes when clients, i.e. employers, ask us to represent them in disputes with employees. The third group is collective labour relations, where we represent clients in collective bargaining as well as in any interaction with a trade union. The last group embraces remaining issues related to labour law. These are issues like whistleblowing and setting up internal systems, checking reports by whistleblowers about wrongdoing or misconduct, GDPR [i.e. data protection] compliance or other specific issues.

Is there any case that is particularly etched in your memory?

KM: There are a lot of interesting cases. But there is perhaps one theme that I am cyclically concerned about and to which I am very sensitive. That is when managers unfairly and to their own benefit exploit imperfections or grey zones in the law and when companies part ways with them, they take advantage of the situation and the company for which they have worked for a long time.

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