Overview of current disputes with remote workers, as well as terms and conditions on electronic correspondence with reference to court practice 2023-2024

If an employee de facto worked remotely, he cannot be dismissed for absenteeism

An employee performed duties remotely for more than 3 years. The employer did not sign an agreement on the transfer to remote work, but accepted performance under it. The parties exchanged electronic documents, conducted work correspondence, etc.

When the employee was dismissed for absenteeism, he challenged this. The courts recognized the company’s actions as illegal. The employer did not formalize the change in working conditions, although in fact the transition to remote work had taken place. In this regard, absence from the office cannot be considered absenteeism, the 8th CCGJ noted.

A similar approach can be found in the recent practice of the 5th CCGJ and the 7th CCGJ. It was previously formed by the SC of the RF.

An employer is not required to compensate for weekend work, even if it directed assignments during that time

The employee said that he was repeatedly directed orally and in writing to run urgent errands on weekends and holidays, but that he was not compensated for working on those days.

The courts did not recognize that the employee was engaged in work outside of working hours. It was not confirmed that the employer set deadlines on tasks for weekends and holidays. The 2nd CCGJ also pointed out: there was no obligation in the employment contract to perform the tasks immediately. The fact that the work was accepted does not mean that the employer was forced to do it on the weekend.

In order to unilaterally cancel a remote robot, it is necessary to prove organizational or technological changes

An employee was notified about the forthcoming transfer from permanent remote mode to stationary mode. This was justified by the fact that the Company has signed many contracts and is introducing new machines. Therefore, it is necessary to check and coordinate design documentation, participate in meetings, organize advanced training of employees.

The specialist was dismissed for refusing to work in the new conditions, but the courts disagreed, considering it unproven that the return to the stationary mode was due to a change in organizational or technological working conditions. The employer did not confirm that it was impossible to retain remote labor. An increase in production volume alone does not provide grounds for the application of Article 74 of the Labor Code of the Russian Federation.

Dismissal for failure to cooperate with the employer should be considered disciplinary action

A remote worker’s contract can usually be terminated if he or she fails to interact with the employer for more than 2 consecutive working days without a valid reason.

Organizations make mistakes by failing to follow the disciplinary procedure for such termination. For example, the 3rd CCGJ clarified that an explanation of the misconduct should have been sought from the employee. The employer’s arguments that the dismissal could not be considered a disciplinary measure were rejected.

In another example, the Company followed the penalty procedure. The fact of misconduct was confirmed and the courts upheld the dismissal.

References: “Labor Code of the Russian Federation” dated 30.12.2001 N 197-FZ (ed. 08.08.2024)

Electronic correspondence can serve as evidence even without authentication

An employee tried to establish the fact of his employment relationship with a company through the courts. He wanted to confirm his employment, among other things, by means of correspondence in a messenger. In order to obtain this information, he did not engage a specialist in the study of digital information. He also did not notarize the information.

The first instance and the appeal considered that the evidence could not be recognized as reliable and admissible. The Cassation disagreed with this conclusion and sent the case for a new examination, pointing out that electronic correspondence does not have to be notarized. The employee has the right to present any evidence to the court as the weakest party in the labor legal relationship.

There is a similar approach in the practice of, for example, the 1st CCGJ and the 8th CCGJ.

Courts often accept e-mail correspondence as evidence in various disputes, in particular, on dismissal and recovery of wage debt.

References: Decision of the 2nd CCGJ of 29.08.2024 in case N 88-21123/2024