In our last webinar, we informed you about the amendment to the Labor Code. As several questions and ambiguities arose, we are providing answers to the questions asked by webinar participants.
I am a self-employed taxi driver and am interested in a job as a clerk in the civil service (public service). Can I keep my self-employment and apply for a job as a civil servant? Thank you.
In this case, no changes have been made that would restrict the combination of public service with other gainful activities (employment, business) - unless there are legal exceptions under the Civil Service Act.
How can I, as an employer, prove that an employee has violated the smoking ban in the workplace? He received a warning, which he signed. Is that sufficient?
If an employee has violated the smoking ban, the employer may impose sanctions in accordance with the Labor Code. Violation of the smoking ban in the workplace may be assessed as a serious or minor breach of work discipline if the employer has a uniform procedure for assessing violations of this ban, including the imposition of sanctions on employees, specified in internal guidelines. A single violation of the smoking ban by an employee constitutes a minor breach of work discipline, in which case a written warning to the employee for breach of work discipline may be issued, with reference to the possibility of termination of employment by notice within the meaning of Section 63(1)(e) of the Labor Code.
In the event of repeated violations of the smoking ban by the same employee, the employer may terminate the employment relationship for a less serious breach of work discipline. However, this is subject to the condition that the employee has been given written notice of the possibility of termination in connection with a breach of work discipline in the last six months. Repeated violations of the smoking ban in the workplace may, under certain legal conditions, constitute grounds for termination of employment.
In this case, a signed warning will suffice to prove the violation of the ban.
Will this change – transferring the burden of proof to the employer – only apply to lawsuits filed after November 1, 2023? Or will it also apply to ongoing lawsuits?
In our opinion, the above court procedure would also apply to proceedings already initiated, because in general the burden of proof on the employer can be inferred from the very nature of proceedings concerning labor disputes between an employer and an employee, in which the employee is the weaker party to the dispute.
Despite the fact that the "reversed burden of proof" was explicitly regulated only by the amendment to the Labor Code, within the meaning of the general procedural provisions governing labor disputes, the change in question will also apply to ongoing proceedings, i.e., proceedings initiated before the amendment to the Labor Code came into effect.
If we are obliged to respond in writing to an employee's request, can we extend their employment contract for an indefinite period? How to justify our decision if we do not want to extend the contract?
Pursuant to Section 49b of the Labor Code, and in accordance with the interests of the employee, it is necessary to respond to the request with a written reasoned response, although the Labor Code does not specify the extent to which the employer's response must be justified. This will therefore always depend on individual circumstances, which may vary and will be assessed on a case-by-case basis. However, the reason should be objective, such as unsatisfactory performance of work duties, the temporary nature of the employment relationship with regard to the fact that it was concluded only for the purpose of replacing another employee, etc.
The basic idea behind the introduction of this legal provision is precisely to increase employee protection and predictability of work. The reason should therefore always be verifiable, objective and justified to at least the extent that the employee is aware of the reason why the employer does not wish to continue the employment relationship for an indefinite period.
The reason is always taken into account according to the situation at the time when the employee requests the extension of the employment relationship.
What is the best way to agree on a probationary period in a fixed-term contract for an employee who is unable to work or as a substitute for an employee on parental leave?
An amendment to the Labor Code introduced a provision that for employees with a fixed-term employment relationship, the probationary period may not be agreed to be longer than half of the agreed duration of the employment relationship. In addition to the above, when agreeing on a probationary period, the probationary period may be agreed for a maximum of three months and for senior employees for a maximum of six months.
In your case, as we assume that the fixed-term employment relationship will last two years (or, in accordance with the exception applied when replacing an employee on parental leave or an employee who is temporarily unable to work, the fixed-term employment relationship may be extended beyond two years), and therefore we expect it to last longer than six months, in which case a probationary period of up to three months may be agreed. Of course, if you know in advance that the replacement of an employee on parental leave or temporary incapacity for work will last less than six months (e.g. the employee is expected to return from parental leave within six months), the probationary period with the substitute employee should be agreed upon so that it does not exceed half of the duration of the employment relationship. If, of course, a situation arises where the employee returns to work earlier than could have been anticipated when the fixed-term employment relationship was concluded, the probationary period of the substitute employee will be shortened accordingly.
Hello, despite the mandatory requirements for employment contracts, our employment contract does not contain a brief description of the job duties. This is provided on a separate form - an appendix. Is this okay?
Pursuant to Section 43(1)(a) of the Labor Code: "The employment contract shall contain the identification details of the employer and the employee. In the employment contract, the employer is obliged to agree with the employee on the essential requirements, which are:
a) the type of work and its brief description..."
A brief description is a mandatory requirement of an employment contract and must therefore be included directly in the employment contract. However, an employment contract as a legal act does not have to consist of a single document, but may also consist of annexes to the employment contract, which form an integral part thereof. A brief description of the type of work may therefore also be included in such an annex.
Hello, can a brief description of the type of work be replaced by a job description?
The description of the type of work and the job description are not identical concepts. In the case of a job description, we assume that you mean the job content, i.e., a detailed description of the individual activities that fall under a specific job position. Under the amendment to the Labor Code, it is necessary to include the following general essential requirements in the employment contract: the type of work and a brief description of the work, the place or places where the work will be performed, or the rule according to which the place is determined by the employee, the date of commencement of work, and the wage conditions.
The employer has the right to decide how to provide the employee with other information, whether separately in writing or directly in the employment contract. We recommend that all information that is not an essential part of the employment contract be provided in a separate written document provided to the employee. Such information includes job descriptions, which do not have to be included in the employment contract but may be specified in written information or in an internal document of the employer (e.g., in the organizational rules), which is usually the most common practice.
What format should the written information accompanying the contract have?
Written information provided by the employer in accordance with the Labor Code or a special regulation may be provided in paper form or as an electronic document.
Hello, what does "if the employee has access to the electronic form of the information, they may save and print it" mean? Do they need to have a printer at home, etc.?
According to Section 38a of the Labor Code: "The employer shall provide the employee with information which, according to this Act or other labor law regulations, is provided in writing, in paper form; the employer may provide this information in electronic form if the employee has access to the electronic form of the information, can store and print it, and the employer keeps proof of its dispatch or receipt, unless this Act or a special regulation provides otherwise. The same applies to a written response from the employer if the employer is obliged to respond to the employee in writing."
The explanatory memorandum to the amendment to the Labor Code does not specify how an employee can print out information in electronic form. Of course, it is neither objectively possible nor realistic to determine whether every employee has a printer at home (we assume that this was not the intention behind the introduction of the provision in question). If, for example, an employee has the possibility to print out this information at the employer's premises, this condition should be objectively fulfilled. In our opinion, this provision concerns rather the forms in which information can be provided to employees, one of which is precisely the provision in electronic form, which is also related to the increasing digitization of services, and the employee may then store and print such information in accordance with the aforementioned provision, which is their right and not an obligation.
In the case of employee complaints, you stated that they may also be submitted verbally. How will we record when and to whom a verbal complaint was submitted? Thank you.
Pursuant to Section 13(7) of the Labor Code, an employee has the right to lodge a complaint with the employer in connection with a violation of the principle of equal treatment under paragraphs 1 and 2, non-compliance with the conditions under paragraphs 3 to 6, and a violation of the rights and obligations arising from the employment relationship; the employer is obliged to respond to the employee's complaint in writing without undue delay, take corrective action, refrain from such conduct and eliminate its consequences. In the event of a complaint, it is important to prove that the complaint has been filed, which is the responsibility of the employee. However, it is certainly advisable to have a mechanism in place for filing complaints; for example, if a complaint is filed orally, it should be recorded in writing that the complaint was filed, in particular when it was filed, who filed the complaint, to whom it was filed, and, if possible, at least a brief summary of the content of the complaint, etc. This is not mandatory, as the employer is only required to respond to the complaint in writing; there is no requirement to keep a record of the complaint, but it is advisable for the employer to keep a record of such complaints, including for the purposes of any further proceedings or inspections by the administrative authorities.
Is it possible to resolve information on other employment conditions, for example, only through internal regulations? We are a small company and our employees have the same conditions.
Provided that it contains all the specified requirements, which are sufficiently defined and applicable to each employee, this may fulfill the obligation, but we recommend that you subsequently provide this information individually to each employee and ensure delivery in accordance with the Labor Code.
Is it possible to refer only to a collective agreement? If there are no trade unions in the company, we only have guidelines. Is it possible to refer to the guidelines?
As in the previous question, if your "guidelines" or internal regulation contains all the specified requirements that are sufficiently defined and applicable to each employee, the obligation can be fulfilled in this way, but we recommend that you subsequently provide this information to each employee individually and ensure delivery in accordance with the Labor Code.
Does the amendment to the Labor Code abolish flexible working hours, which can be partially adjusted by the employee? Must they have a fixed schedule in their contract?
The amendment to the Labor Code does not abolish flexible working hours, but introduces a method for setting/defining flexible working hours in the employment contract or in written information.
What about flexible working hours where employees can determine the start and end of their working hours themselves (no later than 9 a.m. in the morning and 3:30-5 p.m. in the afternoon)?
The method of scheduling must be specified in written information, i.e., it should state how the employee can schedule their working hours, at what times, etc.
What should an employment contract for a home office employee in an administrative and telephone operator position contain?
An employment contract for any position must contain the identification details of the employer and the employee, as well as the following essential information:
a) the type of work and a brief description thereof,
b) place of work (municipality, part of a municipality or other specified location) or places of work, if there are several, or a rule that the place of work is determined by the employee,
c) start date,
d) salary conditions.
We recommend that the employment contract also specify a probationary period and, where applicable, compensation for failure to remain in employment during the notice period.
Home work and telework are defined in Section 52(1) of the Labor Code: "If work that could be performed at the employer's workplace is performed regularly within the scope of the established weekly working hours or part thereof from the employee's home, it is considered
a) home work
b) telework if the work is performed using information technology that involves the regular remote electronic transfer of data."
The performance of home work or telework requires an agreement between the employer and the employee in the employment contract. The employment contract may stipulate that home work or telework shall be performed in whole or in part at a place designated by the employee, if the nature of the work so permits. The employment contract may also specify the scope of home work or telework or the minimum scope of work to be performed by the employee at the employer's workplace if home work or telework is not to be performed solely from the employee's home. The employer and the employee may agree that the employee will schedule their own working hours for home work or telework within the week, or that home work or telework will be performed during flexible working hours.
The Labor Code also stipulates in Section 52(2) 2 stipulates that work performed by an employee on an occasional basis or in exceptional circumstances with the consent of the employer or by agreement with the employer from the employee's home shall not be considered home work or telework, provided that the type of work performed by the employee under the employment contract allows this.
While in the case of home work and telework, the employee performs his or her work from home on a regular basis, home office allows the employee to perform work from home only occasionally or in exceptional circumstances. Home office is therefore only short-term (irregular, temporary) work performed with the employer's consent or by agreement with the employer from the employee's home, while home work and telework are long-term work performed from home in accordance with Section 52 of the Labor Code. Therefore, if an employee only works from home, this is considered home work or telework within the meaning of the Labor Code.
Can information on working conditions (in writing) be included in the work rules, where we currently have it?
A similar question has been answered above.
Working from abroad - can this be considered "working from the beach" for an employee? As a benefit, when they work for us "from wherever they want"? But they are not on a business trip.
With the employer's consent or agreement, an employee may occasionally work from home, provided that the type of work performed by the employee under the employment contract allows this. The employee's home is considered to be the agreed place of work outside the employer's workplace.
If we employ a UA and PZ and all the necessary documents are in Slovak and signed by him, is that okay?
The Labor Code does not specify the language in which an employment contract must be drawn up, which may be an issue when employing a foreign national for whom Slovak is not the working language. The solution can be found in Section 8(2) of Act No. 270/1995 Coll. on the State Language of the Slovak Republic, according to which written legal acts in an employment relationship or similar working relationship shall be drawn up in the state language; in addition to the wording in the state language, a version with identical content may also be drawn up in another language.
If employees directly declare their knowledge of the Slovak language in such a way that they are able to familiarize themselves with the content of their job description in Slovak, we are of the opinion that this is not in conflict with the law. However, it is advisable for employees to make this declaration in writing in case the burden of proof is shifted to them in a possible legal dispute.
If employees do not speak Slovak and are not able to familiarize themselves with the content of their job description, or have an official translation of the job description at their disposal, we are of the opinion that this creates legal uncertainty in the relationship between the employee and the employer and violates the principle of Article 2 of the Labor Code, as it is contrary to good morals. It is the employee's duty to observe work discipline and perform their work tasks in accordance with the type of work, with individual tasks being specifically defined in the employee's job description. It is the employer's duty to inform the employee of their rights and obligations arising from the employment contract, as well as the working conditions under which they are to perform their work. However, if the employee is unable to familiarize themselves with them in the form presented by the employer, this fact cannot subsequently be considered to the detriment of the employee.
Do we have to keep a record of that the employee has received and read their electronic payslips? We have an agreement on sending payslips electronically. Thank you for your reply.
When payslips are delivered to employees electronically, no further confirmation of receipt is required, but the employer must record in the system that the payslip has actually been delivered to the employee.
Is it sufficient to include a brief description in the employment contract with a reference to the document that is part of the employment contract?
Yes, this is possible; a similar question has been answered above.
What is the difference between the pay date and the due date for wages? We do not have a specific pay date. Is this a mistake?
An employee's wage is payable in arrears for a monthly period, at the latest by the end of the following calendar month, unless otherwise agreed in the collective agreement or employment contract. Wages are paid on the pay dates agreed in the employment contract or collective agreement or on the pay dates notified in accordance with Section 47a(1)(d).
Example: The employer has agreed with the employee in the employment contract that his wage shall be payable no later than the 15th day of the calendar month following the month for which the wage is settled. This means that the employer must, for example, pay the employee's wage for June 2022 by July 15, 2022, at the latest.
Pursuant to Section 47a(1)(d), the employer is obliged to provide the employee with written information on his or her working conditions and terms of employment, at least to the extent of the following information, if not included in the employment contract: the due date and payment of wages, including payment dates.
Failure to specify the pay date is one of the most common offences committed by employers and punished by the Labor Inspectorate, as the pay date must be specified either in the employment contract, collective agreement or, pursuant to Section 47a(1)(d) provide employees with written information on the due date of wages, wage payment and payment dates. In your case, it will therefore be easiest to add the payment date to the collective agreement (if you have one).
Do we also have to provide written information to a group of employees and attach an attendance sheet with signatures confirming that the information has been provided, or does the information have to be provided to individual employees?
Under Section 47a of the Labor Code, an employer is required to provide an employee with written information about their working conditions and terms of employment, at least to the extent that such information is not included in the employment contract. The information may also be provided, for example, in the form of internal regulations, provided that they contain all the specified requirements, which must be sufficiently defined and valid for each employee. Nevertheless, we recommend that you subsequently provide this information individually to each employee and ensure delivery in accordance with the Labor Code.
How to correctly define in a work agreement - place of work, auxiliary work on a construction site, and a different place every day? Place of work - Slovakia? Thank you.
If work is performed at several locations for the employer, the parties must, if possible, agree on several places of work in the employment contract. If the work is to be performed at different workplaces that cannot be specifically defined when the employment contract is concluded, the place of work must be defined in the employment contract in another way according to the conditions under which the work is to be performed, for example by defining a specific territorial area or route within the territorial area. The place of work – municipality, part of a municipality or other specified place – may be specified as one or more places of work by mutual agreement and according to the employer's needs. The determination of the place of work is important in connection with travel allowances for business trips, as any work performed outside the agreed place of work is considered a business trip. If you have agreed on a place of work that is too broad, such an agreement could be considered by a court in any legal proceedings as a form of circumvention of the law, and the court could order you, as the employer, to reimburse the employee for the costs incurred during business trips.
Hello. Is it sufficient to specify in the agreement that this will be required on working days, for example from 7:00 a.m. to 5:00 p.m.? In principle, the employee then chooses for themselves.
When concluding an agreement on the performance of work, an agreement on student temporary work or an agreement on work activity, the employer is obliged to provide the employee with written information on
a) the days and periods during which the employee may be required to perform work,
b) the period within which the employee must be informed of the performance of work before it begins, which may not be less than 24 hours.
The definition you propose is sufficient in terms of compliance with the legal provisions.
However, this obligation does not apply if
a) the employer proceeds in accordance with Section 90(4) and (9) → The start and end of working time and the schedule of work shifts shall be determined by the employer in agreement with the employees' representatives and shall be notified in writing at the employer's premises in a place accessible to the employee. The employer is obliged to notify the employee of the work schedule at least one week in advance and with a validity of at least one week.
b) the employer agrees with the employee that the employee shall schedule his or her own working time, or
c) the average weekly working time does not exceed three hours in a period of four consecutive weeks.
Paternity leave in the case of adoption of a child - will the mother and father be entitled to take maternity leave at the same time (the first two weeks) from the date of taking the child into care?
Pursuant to Section 49(1)(a) of the Social Insurance Act, another insured person who cares for a child and who, in the last two years prior to the date on which they apply for maternity benefits, has been covered by sickness insurance for at least 270 days, is entitled to maternity benefits for a period of two weeks from the date of granting maternity benefits, if he is the father of the child pursuant to paragraph 3(d).
According to paragraph 3(d), another insured person is the father of the child until the expiry of six weeks from the date of birth; this period is extended by the calendar days during which the child was admitted to institutional care in a healthcare facility for health reasons on the part of the child or his mother, if the date of admission falls within the period of six weeks from the date of birth.
The possibility of simultaneous maternity leave for both the father and mother of the child for two weeks is thus excluded for other insured persons defined in Section 49(3)(g), i.e. natural persons caring for a child on the basis of a decision by the competent authority. This category includes men who have taken a child into their care on the basis of a court decision entrusting the child to substitute parental care, i.e. adoptive parents.
Based on the above, we believe that in the case of adoption of a child, the simultaneous drawing of maternity benefits by the father and mother does not apply.
If an employee on a contract basis schedules their own working hours, is it possible to apply the provisions on domestic work (Section 52(7)) analogously – non-application of benefits, obstacles, etc.?
The Labor Code is based on the premise that only those provisions of the Labor Code that are explicitly defined in Section 223(2) apply to employment relationships based on agreements on work performed outside of an employment relationship. Section 52(7) of the Labor Code is not included in the provision in question, from which it can be inferred that the provision does not apply to employment relationships based on agreements.
Does Section 164(3) not apply to children over the age of 8 who are disabled?
Within the meaning of Section 164(3) of the Labor Code: "If a woman or man permanently caring for a child under the age of eight requests home work, telework or work from home pursuant to Section 52(2) for the purpose of caring for a child, the employer is obliged to provide them with a written reasoned response if their request is not granted within a reasonable period of time. When assessing the request, the employer shall take into account the tasks and legitimate interests of the employee."
The literal wording of the provision in question indicates that Section 164(3) of the Labor Code does not take into account children older than 8 years of age, even if the child is disabled. In any case, it is not excluded that an employee may submit such a request, but this will depend solely on the agreement between the employee and the employer, as it does not fall under the relevant legal provision.
A driver does not need to have an employee sent if it is less than the stipulated time of 3-4 weeks.
Given the general nature of the question and the lack of information, it is not possible to provide a clear answer. However, we would like to refer you to Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020, which lays down specific rules relating to Directive 96/71/EC and Directive 2014/67/EU for the posting of drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements, and Regulation (EU) No 1024/2012.
The Directive clearly defines when posting applies and when it does not.
When does posting not apply?
Transit – a situation where the driver is only passing through a country to which he is not transporting goods;
International bilateral transport operations – a situation where a driver travels from Slovakia (the carrier is established in Slovakia) to transport goods directly to another country (e.g. Austria) on the basis of a transport contract, and vice versa
Bilateral transport operation with additional activity – a situation where a driver traveling from Slovakia to Germany makes one loading and/or unloading of goods in the countries through which he passes. Alternatively, if he does not perform any additional activities on the way to Germany, he will be able to perform two such loading and/or unloading operations on the return journey to Slovakia. Of course, this is always subject to the condition that the loading/unloading is not carried out in the same country (i.e. the driver cannot load and unload goods in the Czech Republic).
When is it considered a posting?
Cabotage – occurs when a driver temporarily performs domestic transport in an EU country other than the country in which the employer is established.
Transport by third-country carriers – occurs when a driver carries out transport between two EU countries or between an EU country and a third country, and their employer is not established in any of these countries.
What exactly is the duration of the probationary period? If the employment relationship began on 1 December 2022 and the probationary period is agreed to be 3 months, is the last day of the probationary period 1 March 2023 or 28 February 2023?
For the purposes of calculating the probationary period, it is necessary to proceed from the rules for calculating time limits contained in the Civil Code. Pursuant to Section 122(2) of the Civil Code, the end of a period specified in months falls on the day that corresponds to the day on which the event occurs.
Example: An employer and an employee agree that the employee will start work on September 1, 2022, and also agree on a probationary period of three months. In this case, the last day of the probationary period (unless there are obstacles to work on the part of the employee) will be December 1, 2022, i.e., on this day, both the employer and the employee may validly terminate the employment relationship during the probationary period.
It is also necessary to take into account the provisions of Section 45(3) of the Labor Code, which states: "If, during the agreed probationary period, the employee has not worked the entire shift due to an obstacle to work on his or her part, the probationary period shall be extended by one day." Therefore, if an employee misses even part of a shift due to obstacles to work on their part, their probationary period shall be extended by one day for each day on which the employee missed the shift or part thereof.
Applying the above, if the employment relationship began on December 1, 2022, and the probationary period is three months, the last day of the probationary period will be March 1, 2023, unless it is extended due to obstacles on the part of the employee.
Can I pay an employee under a contract for work an extraordinary bonus that is not specified in the contract + remuneration for hours worked in accordance with the contract?
Yes, the Labor Code does not in any way restrict the employer's ability to provide an employee in an employment relationship based on an agreement with extraordinary remuneration paid in addition to the agreed remuneration.
What form should be used to determine the place of work if several places are agreed in the employment agreement? Is it sufficient to state that the place of work is determined by the statutory representative depending on the needs of the organization?
If the employer requires work to be performed at several locations, the parties should, if possible, agree on several places of work in the employment contract. If the work is to be performed at different workplaces that cannot be specifically defined when the employment contract is concluded, the place of work must be defined in the employment contract in another way according to the conditions under which the work is to be performed, for example by defining a specific territorial area or route within the territorial area. The place of work – municipality, part of a municipality or other specified place – may be specified as one or more places of work by mutual agreement and according to the employer's needs.
The determination of the place of work is important in relation to travel allowances for business trips, as any work performed outside the agreed place of work is considered a business trip. If you have agreed on a place of work that is too broad, such an agreement could be considered by a court in any legal proceedings as a form of circumvention of the law, and the court could order you, as the employer, to reimburse the employee for the costs incurred during business trips. Furthermore, in the case you have described, you have not defined the place of work at all (the definition "depending on the needs of the organization" is insufficient and general, which could imply that the work can be performed anywhere, even in another country, and therefore it is necessary to specify the place of work). Of course, the determination of the place of work is also assessed with regard to the specific job position and job description. The place or places of work can be determined either by specifically defining the place(s) where the work is usually performed (e.g. the employer's registered office, branch addresses, offices, etc.), or the place of work may be determined by defining a specific territorial area (municipality, region, etc.) so that it is sufficiently specific and at the same time not too broadly defined (we therefore do not recommend defining the place of work as the territory of the Slovak Republic, etc.).
I want to send confirmation of RZD and confirmation of payment electronically based on an agreement on electronic delivery, and the payroll software only generates a confirmation of sending an email: the name of the form I am sending, the recipient's email address, the date and time of sending, and the status sent/error sending. I am now sending payslips in the same way, and this is fine. Could confirmation of employment also be sent in this way?
Pursuant to Section 75(2) of the Labor Code: "Upon termination of employment, the employer is obliged to issue the employee with confirmation of employment."
At the same time, Section 38(1) of the Labor Code governing delivery stipulates that documents from the employer concerning the establishment, change, and termination of employment or the establishment, change, and termination of the employee's obligations arising from the employment contract must be delivered to the employee in person. The employer shall deliver the documents to the employee at the workplace, at his or her home or wherever he or she can be found. If this is not possible, the document may be delivered by post as a registered letter.
A confirmation of employment, as a document related to the termination of employment, must be delivered with priority to the workplace, the employee's home, wherever they can be found, and only then by post as registered mail, with reference to the above provisions. At the same time, however, you can ask the employee to cooperate in receiving the confirmation, e.g. by requesting that it be picked up at a specific time and place.
