The COVID-19 pandemic significantly affected work organisation, particularly in the services sector, but also in white-collar and administrative/office work. To reduce the risk of infection, where possible, many employees switched to remote working, and business meetings became virtual. This model quickly gained popularity and was gradually implemented more widely, even after the peak of the pandemic had passed.

In 2023, an amendment came into force that permanently introduced remote working into the Labour Code. Although there is currently a "back to the office" trend on the market, public opinion polls show that most employees value the opportunity to work remotely or in hybrid mode, which saves time on daily commutes and promotes work-life balance. For example, in a survey conducted for the No Fluff Jobs report, 69% of respondents indicated that they would like to be able to choose remote work for positions where it is realistically feasible.

From the employers' perspective, remote work can, on the one hand, increase job attractiveness and help attract the best candidates for the job. On the other hand, it reduces operating costs such as office space rental, utility consumption and maintenance of social facilities. At the same time, this model comes with some challenges – it requires appropriate forms of supervision and remote team management, as well as effective responses to possible abuse by employees discharging their duties outside the office.

Sometimes, remote working poses certain difficulties for employers, such as the unavailability of employees due to them dealing with personal matters during working hours or a noticeable fall in efficiency, which negatively affects overall work performance. In such cases, the question arises as to whether, and to what extent, it is reasonable to restrict remote working and how to respond effectively to reduced productivity among employees working from home.

Request to discontinue remote working

If a specific employee working remotely does not meet expectations, the employer may submit a request to terminate remote work pursuant to Article 67²² § 1 of the Labour Code. According to this provision, either party to the employment contract may submit a binding request to terminate remote work and restore the previous work conditions. The parties then agree on a date for the restoration of the previous conditions, and if no agreement is reached in this regard, the previous conditions are restored 30 days after the date on which the other party receives the request.

Importantly, however, an analysis of the provisions suggests that this solution may only be applied if:

• remote work was agreed upon during the employment relationship, and
• it was agreed upon by way of separate arrangements, i.e. it was not specified in the employment contract (either as a provision or as an annex).

Both the above conditions must be met jointly.

This mechanism cannot be applied to so-called privileged employees, i.e. those whose request to work remotely is, in principle, binding on the employer (this applies, among others, to pregnant employees and employees raising a child under the age of four). In relation to this group, the employer may only submit a binding request to revoke remote work if it is no longer objectively possible to continue remote work due to work organisation or the type of work carried out.

It is worth noting that although the literal wording of the provision refers only to "restoring the previous conditions of work" (i.e. returning to the situation prior to agreeing to remote working), it seems reasonable to also apply this provision to a partial restriction of remote work (i.e. a reduction in its scope). This interpretation is based on a maiori ad minus reasoning (from the greater to the lesser) – if it is permissible to unilaterally revoke remote work in its entirety, then all the more should it be to unilaterally restrict it (by replacing completely remote work with a hybrid work model). However, it should be emphasised that this is not a universally accepted view. There are also views in the public domain that advocate a strictly literal interpretation of the provision.

Amendment of the employment contract

The question arises as to how an employer can revoke or restrict remote work if the terms and conditions of its performance have been regulated:

• directly in the employment contract; or
• in a separate agreement but concluded at the beginning of employment (i.e. on the date work commenced at the latest).

According to prevailing views, if remote work was agreed in one of the above ways, there are two ways of revoking remote work, i.e.:

• giving the employee a notice of amendment, or
• concluding an amending agreement (annex to the contract) with the employee.

A notice of amendment is a unilateral legal action by the employer that leads to a modification of the employment contract terms. In the case of remote work, the employer may terminate the existing terms of employment and propose new ones, providing for work to be carried out exclusively at the employer's premises or in a hybrid model.

A notice of amendment must meet the formal requirements for employment contract termination. In particular, it must be made in writing, with the appropriate notice period and stating the reason justifying the change in working conditions. This reason should be specific and genuine. It may be, e.g. a fall in employee work efficiency, problems with communication and team coordination, unavailability during working hours or a change in the organisation of work at the workplace.

An employee who has received a notice of amendment may, up until expiry of half the notice period, submit a statement to the employer refusing to accept the new terms and conditions. In such case, the employment contract will be terminated at the end of the notice period. Failure by the employee to submit such statement means implied acceptance of the new terms and conditions of the employment contract.

Importantly, the employee has the right to appeal against the notice of amendment within 21 days of receiving it. If the labour court finds that the notice was unjustified or violated the law, it may rule that it is invalid and restore the previous terms of employment or award compensation to the employee.

As the reason for the notice of amendment may be a change in the employer’s work organisation without any concurrent reason on the part of the employee (e.g. low efficiency or other irregularities in carrying out remote work), and the notice of amendment  with a new set of terms and conditions may ultimately lead to the definitive termination of the employment contract, in some cases it may be necessary to follow the procedure applicable to collective redundancies, regulated by the Act on special rules for terminating employment relationships with employees for reasons not related to the employees.

A recommended alternative to a notice of amendment is to conclude an agreement with the employee amending the terms of the employment contract. This solution is based on the mutual consent of both parties to the employment relationship and requires the acceptance of both the employer and the employee.

The amending agreement should specify precisely which terms of the employment contract are being changed. In the context of remote work, this may mean completely abandoning this model, limiting the number of remote workdays per week or month, or introducing additional conditions for its performance. There are no obstacles to revocation or change of the remote working model taking place on the day the agreement is concluded – there is no specific notice period for remote work in this case.

The advantage of an amending agreement is that it significantly reduces the risk of litigation. Since both parties to the employment relationship agree to the change in conditions, the employee has very limited, and difficult to prove, scope for subsequently challenging the validity of such an agreement before a labour court (coming down to possible invocation of defects in declarations of will, such as error, threat or deception).

Although concluding an agreement remains the recommended course of action, in practice it may prove difficult to achieve.  Most employees are reluctant to give up the comfortable model of remote or hybrid work. In such cases, the employer may consider offering the employee certain benefits in exchange for agreeing to the change (e.g. pay rises, additional days of leave or flexible working hours).

Revocation of remote working and the principle of equal treatment in employment

An employer's revocation of remote working (regardless of its form) may be assessed from the perspective of the principle of equal treatment in employment.

This applies in particular to situations where the employer has decided to revoke remote work or limit it to only certain employees. Although an employer does not have to justify a request to discontinue remote work under Article 67²² § 1 of the Labour Code, this does not preclude the possibility of an employee filing a claim for unequal treatment in employment.

An employee whose employer has violated the principle of equal treatment (or committed discrimination) is entitled to compensation in the amount of at least the minimum wage (in 2025 – PLN 4,666).

In order to limit the risk of possible claims by employees in this respect, it is advisable to collect evidence proving that the reason for revoking or limiting remote work for a given employee is objectively justified. In other words, the employer should be able to demonstrate that the decision was based on non-discriminatory criteria, such as

• poorer performance or quality of work,
• lack of expected availability (including, in particular, violations of working time),
• inappropriate cooperation with the team,

– compared to other employees working remotely, in relation to whom the employer did not decide to modify or completely revoke this model. The risk of inequality discrimination claims is obviously limited if the employer has revoked remote work for all employees (e.g. in a given department) to the same extent.

Importantly, the burden of proving that there has been no breach of the principle of equal treatment rests with the employer (reversed burden of proof). This means that the employer must demonstrate that their decision was objectively justified and not discriminatory (while the employee only has to prove that unequal treatment occurred).

Possible grounds for terminating an employment contract

If the manner in which a remote employee works does not meet the employer's expectations or if specific employee obligations are violated during remote work, it may be justified to terminate the employee's contract definitively.

It is worth emphasising that even in the remote working model, despite the lack of physical presence at the workplace, the employee is still bound by the basic rules of fulfilling their duties, including the need to comply with the established working hours. In practice, however, it happens that employees working remotely are unavailable during working hours, devoting this time to private matters without prior agreement with the employer and without making up for it later. This, in turn, can have a negative impact on both the organisation of the team's work and the employee's own performance.

In the event of breaches of work discipline (especially repeated ones), this may constitute a valid reason for termination of employment. Termination may take the form of notice, and in particularly gross, culpable and harmful situations, even disciplinary action.

The reason for terminating the contract, regardless of the procedure,  must be, among other things, current, true and justified. The decision to terminate the employment relationship should, therefore, always be preceded by a thorough analysis of the facts and a comprehensive legal assessment of the specific case. This is particularly important because the termination of an employment contract always involves certain risks for the employer. In particular, improper termination of employment by the employer may result in liability for damages to the dismissed employee and even an obligation to reinstate them to work.

Aleksandra Wójcik, Przemysław Zając