Home Work, Telework and the Regulation of Working Time: A Tale of (Partially) Similar Regulatory Needs, in Spite of Historically Rooted Conceptual Divergence

Abstract

In this paper, the author argues that, at the conceptual level and as opposed to ‘traditional’ home workers, teleworkers can be subsumed under the (continental) concept of employee. To this end, the author illustrates how the adoption of the notion of subordination as a definitional element of the contract of employment gave rise to an incongruence between the concept of employee and the notion of home worker, an incongruence that is far from apparent with regard to teleworkers, who may be subjected to the ubiquitous control of their employer by means of information and communication technology (ICT). According to the author, this conceptual divergence does not dispense with the need, at a regulatory level, to take into account the particularities of some or all forms of telework, in spite of the principle of equal treatment enshrined in Article 4 of the European Framework Agreement on Telework. This point is illustrated with respect to the regulation of working time in Belgium and France.