Teleworking from a legal, tax and ‘change’ perspective

With working from home mandatory or recommended during the Covid-19 pandemic, companies are considering how to reorganise their work so as to structurally incorporate teleworking in the future. A survey by BDO reveals that, since the lockdown, 9 out of 10 Belgian employees and managers would like to work from home between one and three days a week. Do you want to embed teleworking in your organisation? If so, you will need to take into account aspects relating to labour law social security and taxation, while also adopting a ‘lean’ approach.

Authors: Lore Vanhaute, Advisor BDO Legal Melissa Claessens, Supervisor BDO Tax Geert Volders, Partner BDO Strategy & Transformation

Including teleworking in the employment contract

‘Structural teleworking’ is when employees may carry out their work away from their employer’s premises on a regular basis (and not just occasionally), using the employer’s information technology. It is possible to include such a provision in any ordinary employment contract for blue or white-collar workers whose duties lend themselves to working from home. In such cases, the employer is bound by the National Labour Council’s Collective Labour Agreement (CLA) No. 85, which sets the framework and conditions for days on which teleworking occurs. On the days he or she works remotely, a teleworker is entitled to the same employment conditions as an employee who is working on the employer’s premises. He or she is also free to organise his or her work as he or she sees fit within the company’s working hours. A teleworker is otherwise excluded from regulations regarding working hours, night work and Sunday trading. For the other working days, the normal rules of the Law of 3 July 1978 on employment contracts apply.

Lore Vanhaute, Advisor BDO Legal

The CLA sets out the following conditions for teleworking:

  • Teleworking must always be done on a voluntary basis. Therefore, an employer can never oblige employees to work remotely. Conversely, employees cannot claim a right to work remotely.

  • The employer must set out the teleworking conditions in writing, either in the employment contract or in an appendix. CLA No. 85 prescribes what must, at minimum, be included in this individual agreement.

  • The employer must inform employees of their employment conditions – and, in particular, of any additional conditions that apply to teleworking within the company. Such conditions may be included in the employment regulations or as a teleworking policy, for example.

  • In principle, the employer is obliged to make the equipment available that the employee requires to be able to perform his or her duties remotely (laptop, mobile phone, etc.). However, the employee may also use his or her own equipment, in which case the operating costs are to be borne by the employer.

  • The employer must ensure the necessary protection of the employee’s personal data and remains responsible for the teleworkers’ health and safety.

  • Companies with employee representation are obliged to inform and consult employee representatives prior to the introduction of teleworking.

“A teleworker is entitled to the same employment conditions as an employee working on the employer’s premises.”

Reimbursement of teleworking costs

In principle, the employer is obliged to bear the costs of the connections and communications required for teleworking, as well as costs incurred by employees for the use of their own laptop, mobile phone or smartphone.

It is both possible and recommended for practical reasons to apply fixed allowances for teleworking. Both the NSSO and the tax authorities accept the following maximum fixed monthly amounts in reimbursement for costs proper to the employer, exempt from NSSO contributions and taxes:

    NSSO Conditions Conditions tax authorities
Office expenses €129,48 For heating, electricity and office
supplies, as long as the employee
spends a structural and regular
portion of his or her working hours working from home.		 Office expenses incurred for the home office, for all employees who regularly and structurally work from
home (i.e. at least five working days a month). These expenses may not be reimbursed by other means.
  Or 10% Of the gross salary. This gross salary is limited to the portion relating to the work done at home. If the amount exceeds €129.48/month and the above-mentioned conditions are not met, it is advisable to apply for a tax ruling.
Internet 20 EUR If the employee uses his or her
own internet connection/PC for professional purposes on a regular basis: for example, one day a week, a few hours several times a week, or one week each month.		 Exempt if:

  1. The employee is demonstrably using his or her own internet connection/PC for teleworking (i.e. organised work performed from home instead of at the office, on a regular basis and during normal working hours).
  2. The compensation is in fact being used for these expenses (the tax authorities will not require proof as long as €20 is not exceeded).
Pc or laptop 20 EUR    

Of course, it remains possible not to employ fixed amounts and instead to reimburse the actual value of the costs incurred on submission of supporting documents. In other words, reimbursement of expenses exceeding the fixed amount of EUR 129.48 per month is allowable, insofar as these costs can be proven.

If the employee uses equipment (such as a laptop or mobile phone) that is provided by the employer, no further reimbursement may be granted for this use. If the employee is also permitted to use these resources privately, then a fixed benefit in kind (BIK) will need to be taken into account. As the BIK is part of the salary, the employee must pay social security contributions and personal income tax and the employer may claim a tax deduction.

Provided by the employer: Valuation of benefit in kind for private use (NSSO and tax authorities):
Pc €6/month or €72/year
Tablet, mobile phone, smartphone €3/month or €36/year
Telephone subscription €4/month or €48/year
Internet connection (landline or mobile) €5/month or €60/year

Melissa Claessens, Supervisor BDO Tax

Towards a new way of working

Embedding teleworking and establishing the rules is one thing, but getting employees accustomed to it is another matter. “Our experts supported numerous companies in the course of the pandemic. They saw considerable variation in individual employees’ expectations and capabilities,” says Geert Volders, Partner at BDO Strategy & Transformation. “That is why it is so important that employers give their departments and teams the scope they need to get used to this new way of working. Teleworking is definitely not a ‘one size fits all’ proposition.”

“Many employers are calling this first extensive experience with teleworking an unexpected success.”

Geert Volders, Partner BDO S&T

How should you proceed?

Start by creating a basic policy that outlines the general principles and be sure to involve middle management in the roll-out as early as possible. Have them negotiate and draw up agreements at the team level. Here, Geert Volders identifies four key questions:

  1. How will we communicate as a team?
  2. What type of information do we need?
  3. How will we distribute the work?
  4. How will we measure our results?

Now spend three to six months putting these team agreements into practice. Conclude the process by creating a definitive policy that embeds all the best practices and lessons learned.

“The employer’s or HR manager’s task here is to provide middle management with optimal support,” Geert Volders has learned. “Demonstrate the benefits of teleworking to them, develop their managerial skills, offer new tools and keep making improvements. All these ‘lean’ techniques can help facilitate the change to a new way of working.”

Read the full article (in French or Dutch) from HR Square, published in September 2020.

“The greater your employees’ acceptance of teleworking, the higher their productivity and commitment to the company.” – Geert Volders, Partner BDO Strategy & Transformation

Teleworking Survey 2020

Will teleworking continue after Covid-19? To discern Belgians’ teleworking experiences, BDO Belgium organised a large-scale survey in Flanders, Wallonia and Brussels. Our analysis of the results concentrated on ways to consolidate the future of this ‘new way of working’ after the crisis.

Many employers called this first extensive experience with teleworking an unexpected success. In general, employees were also very positive – to the extent that, according to our survey, as many as 95% would like to continue working remotely after the pandemic. Quite a few employers have already responded to such desires, accelerating the implementation of a teleworking policy.

The survey report offers insights into organisational bottlenecks and opportunities for improvement in both the private and public sectors. You can download the report (in French or Dutch) here. 

Do you have any questions regarding the implementation of teleworking? Are you looking for help with the analysis of your situation or in rolling out a step-by-step teleworking plan? If so, please do not hesitate to contact the specialists from our Legal and Strategy & Transformation teams: legal@bdo.be or geert.volders@bdo.be.