Once a pandemic necessity, remote working in Luxembourg is now being reconsidered. With some companies urging a full return to the office, important legal, organisational, and reputational questions arise.
Remote working, now the norm for many companies in Luxembourg, has seen a slowing in its rise and has even been called into question entirely.
Although this practice really took off during the pandemic, thanks to the simultaneous adoption of the Convention of 20 October 2020 on the legal regime for remote working (2020 Convention), some companies are now considering a return to a more traditional structure by asking their employees to come back to the office full time.
This trend raises a number of questions, from not just an organisational, but also legal and reputational, perspective.
Remote working: where does it stand in Luxembourg?
The 2024 Panorama social report from the Luxembourg Chambre des salariés provides the following information about remote working:
- Working exclusively on-site is rare as the number of workers who never work remotely has fallen significantly, from 72% in 2017 to 49% in 2023.
- The majority of employees express a preference for a hybrid model (a combination of working remotely and working on-site).
- One third of employees recognise that their role is not suited to remote working, but only 12% want to work exclusively on-site, while a significant portion want to continue balancing both options.
Is remote working a real opportunity?
- Pros: Remote working offers undeniable advantages, particularly with regard to work-life balance, as well as in terms of saving time, thanks to the reduction in travel time, which is a major challenge for cross-border workers in Luxembourg, who are vital to the country’s economy.
- Cons: However, remote working also triggers undeniable challenges for companies. Employee isolation, loss of cohesion in teams and difficulties in maintaining a strong company culture are some of the many concerns that companies have to manage. For some, the decision to return to a more traditional way of working has been a necessary answer to these problems.
Keeping or ending remote working is a strategic decision that should be assessed on a case-by-case basis and cannot be not made lightly, especially in a labour market where the ability to recruit and retain talent is exceptionally competitive and more of a challenge than ever. In this context, remote working is a competitive advantage that cannot be easily avoided. Therefore, this is ultimately a question of human resources management.
Every company must evaluate their own situation and decide (in discussion with the staff delegation, if necessary) whether or not it is best to continue offering remote working. Recent studies show that some employees will consider changing employer if this option is taken away [1].
Is it possible to get rid of remote working?
In legal terms, the question being asked is whether an employer can backtrack on remote working policies. Employers are facing two situations that push them towards restricting or ending remote working:
- disciplinary reasons (for example, in the event that an employee does not respect the rules of remote working)
- organisational reasons (if the employer decides that this type of work no longer fits their company’s operational needs)
The 2020 Convention, which provides guidelines on this type of work, highlights that remote working is on a voluntary basis for both the employer and the employee. Therefore, the employer cannot unilaterally impose remote working. The 2020 Convention is less detailed about the return to working on-site and mentions again the voluntary nature. Similarly, it does not take an explicit stance with regard to restrictions on the means of remote working, such as a reduction in the number of days that an employee can work from home.
As a result, it is worth employers assessing which of the scenarios best fit their circumstances:
Collective agreements
In the context of collective or sector agreements (the less common scenario), the employer is obliged to respect the provisions and cannot derogate from the right to work remotely without renegotiating the terms of the agreement entirely, which would mean revoking the collective agreement when it expires to initiate new negotiations with the trade unions. However, in general, clauses to end remote working have been negotiated in principle, such as the agreement for the healthcare sector, which stipulates in Article 6.6.2 that “Remote working is not a vested right. As the employee and the employer can end it at any time.”
Common agreement
If there is no collective agreement, the withdrawal of remote working can be considered by means of a common agreement between the employer and the employee, but in the majority of cases, it will not be an appropriate solution if the employer wants to effect a real collective change within their company.
Contractual remote working
An informed employer who is introducing remote working in their company should take care to establish in writing the processes for returning to a traditional work model, i.e. a return to working on-site. Incidentally, this is a legal obligation pursuant to Article 5 of the 2020 Convention when remote working is a regular practice for employees.
Therefore, many companies have integrated clauses stating that remote working is not an established right and that it can be modified and/or withdrawn at any time. These clauses should be enforceable. If the remote working arrangement does not provide these clauses, only the methods according to which the employer can restrict or unilaterally end remote working, it is possible that these clauses may be subject to disputes brought by employees, depending on the context (for example, if the notice period is not considered to be reasonable).
Absence of a clear legal framework
The situation becomes more complex and potentially contentious when no formal process for returning to on-site work has been put in place. In this case, practices that have been established within the company may, depending on the factual circumstances, evolve into vested rights, thus making it difficult to remove remote working without following legal processes, such as the unilateral modification of employment contracts, which requires advance notice and formal justification for the decision.
Remote working: does the staff delegation need to be involved?
In theory, no modification to the remote working arrangement and, similarly, no term to this arrangement can occur without the involvement of the staff delegation (if there is one), pursuant to the 2020 Convention and the Luxembourg Labour Code.
What are the takeaways?
Ultimately, for Luxembourg companies, any changes to the remote working arrangement must be approached with caution and from a number of perspectives. A removal that is too quick or is poorly managed may not only impact morale and internal organisation, but may also lead to legal disputes. The involvement of staff representatives is a crucial point, especially in companies with more than 150 employees and in which the joint decision-making process is applicable. In addition to the legal challenges linked to remote working, companies must also be aware of reputational risks, because managing this new work structure poorly could tarnish their image among employees, clients and partners.
Therefore, before imposing a return to working on-site, it is vital for employers to define a long-term strategy that ensures respect for both the legal framework and employee expectations, on pain of compromising the ability to retain talent or facing legal consequences.
[1] Télétravail des cadres : Pas de retour en arrière envisageable pour les cadres, mais des points de vigilance, Association pour l’emploi des cadres (APEC), March 2024; Majority of Remote Workers Would Quit If Forced to Return to Office: Study, Newsweek, 12 September 2024.
