Digest of key judgments concerning remote work

Digest of key judgments concerning remote work

06 July 2021

Please find, herein, our latest up-to-date digest of the most significant court decisions, concerning remote work. Here are the precedents of regional judicial authorities, in 2020 and 2021, including the decisions of first instance courts establishing the approach on the new regulations of remote work, as of January 1st, 2021.

1. The Supreme Court of the Republic of Tatarstan stated: a remote employee is entitled to execute a mutual employment termination agreement, via an employer's electronic digital workflow system, if the parties have agreed on it

The employee was transferred to remote work, due to the epidemiological situation, which was confirmed by an additional agreement executed electronically, via the employer's internal digital workflow system.

Then, the mutual employment termination agreement was concluded between the parties by affixing an electronic signature (“e-signature”). The employee claimed that the employment termination was unlawful, since the mutual employment termination agreement was signed in an improper way.

The court rejected the employee's claims, stating that the parties entered into the agreement on the use of e-signature, according to which an electronic document, signed with an e-signature, was recognized as an equivalent to a paper document signed with a handwritten signature.

Thus, the court recognized that the employment termination was lawful.

Source: Appeal ruling of the Supreme Court of the Republic of Tatarstan dated February 8th, 2021 in case No. 33-2063/2021

2. The Second Court of Cassation of General Jurisdiction explained that an employee is considered remote if he/she alternates working in the office and from home, with the knowledge of an employer

The employee was dismissed due to truancy. The employee challenged the dismissal in the court, claiming that he had agreed the work schedule with his immediate supervisor, according to which the employee worked in the office on Tuesdays, Wednesdays, and Thursdays, and remotely – using special technical means – on Mondays and Fridays.

The court of first level recognized that the employee’s dismissal, due to truancy, was lawful. The courts of appeal and cassation levels did not validate this position, emphasizing that the work schedule was agreed with the immediate supervisor; the employee was provided with the necessary remote access to the work information system, using which he received and performed work assignments; all work-related issues were resolved via email. Thus, the employee legally alternated doing work from the office and from home.

Source: Decision of the Second Court of Cassation of General Jurisdiction, dated September 22th, 2020 in case No. 88-19758/2020

3. The Moscow City court: an employer’s failure to formalize remote work in writing is treated as misconduct, if an employee de-facto performs job duties remotely

The employee was dismissed due to truancy. 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 e-mail.

The court of the first level 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 formalize 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 performed job duties remotely for a long time, the employer calculated and paid the salary, which jointly means that the employer tacitly agreed on the existing working conditions.

Source: Appeal ruling of the Moscow City Court, dated November 18th, 2020 in case No. 33-416582/2020

4. The Moscow Regional Court underlined that an employer must be guided by the principles of fairness and proportionality when bringing an employee to disciplinary responsibility

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 truancy. 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 the clinic with complaints.

The court of first level recognized that the employee’s dismissal, due to truancy, was lawful. The court of second level disagreed with such position and stated the following: the employee was absent, without an excuse, since he did not submit a medical disability certificate. However, considering the fact that he had agreed remote working with the immediate supervisor and completed work assignments, the court came to a conclusion that the employer did not suffer negative consequences, due to the employee’s absence in the office, and the court considered the dismissal as 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 October 14th, 2020 in case No. 33-26370/2020

5. Exchange of documents related to the voluntary resignation via messengers is legitimate - stated the St. Petersburg City Court

The remote employee sent a scanned copy of his resignation letter, via instant messenger, and then employment relations were terminated.

The employee later sued for reinstatement. He claimed that the employer violated the dismissal procedure, since the resignation letter was sent in electronic form and was not signed by the employee's enhanced qualified signature.

The court refused to meet the demands of the employee. The court explained that an employment contract, or an employee’s internal policies, may specify a procedure for communication and exchange of documents between the employer and the remote employee.

According to the company's Internal Labour Regulations, the parties recognized the legal force of information and documents sent via e-mail, messengers (Viber, WhatsApp, Telegram) and social networks (VKontakte, Facebook, Instagram).

Source: Appeal ruling of the St. Petersburg City Court, dated February 10th, 2021 in case No. 33-3431/2021

6. Fulfilment of an employee’s job duties remotely abroad is not a ground for non-payment of a personal income tax – underlined the Moscow Region Court

The employee worked remotely in Uzbekistan. Later on, the employment was terminated due to the mutual consent. The employee claimed that the company should not pay personal income tax (“PIT”) in Russia on the money earned abroad and filed a claim with the court.

The courts of the first and second levels supported the employer. The remote employee’s income earned during the work abroad was considered as income that was gained from a source outside of the Russian Federation, so it must be recognized to comply with the Russian tax requirements and the PIT must be paid. Considering this, the court dismissed the employee’s claim.

Source: Appeal ruling of the Moscow Region Court, dated September 28th, 2020 in case No. 33-24474/2020

7. The Moscow City Court pointed out that an employer cannot unilaterally change a de-facto remote employee’s work arrangements

The employee was working remotely, for a year. However, the employer decided that the employee should work from the office and issued a respective order in this regard. 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 truancy. The employee challenged the dismissal in court.

The court of the first level recognized that the employee’s dismissal, due to truancy, 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 knowledge of the employer, the employee was recognized as the remote one. In this regard the employer was not in a position to change the 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 November 12th, 2020 in case No. 33-415385

8. A remote employee cannot claim compensation for using personal equipment and arranging the workplace, if he/she has not agreed such expenses with an 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 incurred expenses, 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 February 15th, 2021 in case No. 33-1105/2021

9. Gagarinskiy District Court of Moscow stated: working outside the place agreed with an employer could be considered as a violation of discipline

The parties agreed that the employee could perform his job duties remotely from home. However, the employee traveled abroad and performed job duties remotely by connecting his laptop to foreign, public Wi-Fi networks.

The employer’s internal policies, with which the employee was duly familiarized, provided that connection to unprotected, public Wi-Fi networks was prohibited. Since that, and taking into consideration 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 as illegal and claimed so to the court. The court rejected the employer's claims, emphasizing that the remote employee had no right to change his remote place of work, in his sole discretion.

Source: Decision of the Gagarinskiy District Court of Moscow dated March 10th, 2021 in case No. 2-1435/2021

10. The creation of special conditions for remote work demonstrates the existence of employment relations – stated the Leninskiy District Court of the city of Orenburg

The employee was hired “remotely” during the period of restrictive measures for СOVID-19 spread prevention. The employee worked remotely and received his salary. After a while, the employee informed the employer about his voluntary resignation, both orally and via e-mail.

The employer, in its turn, filed a claim to the court for unjust enrichment. The employer indicated that employment relations did not arise, since the employee did not start his performance on the commencement date, so the employment agreement was annulled. The employer stated that the company mistakenly transferred funds to the employee's bank account.

However, the court found that the employer created an e-mail 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 the current performance and received assignments. In this regard, the court rejected the employer's claims and concluded that the transferred funds should be considered as salary, paid with regard to the employment relations.

Source: Decision of the Leninskiy District Court of the city of Orenburg dated January 14th, 2021 in case No. 2-611/2021 (2-7109/2020)

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Practice: Labour and Employment

Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.

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