The remote working law came into force in Spain in October 2021. We analyse its evolution over the last few months and the points that are generating the most controversy.
Main aspects of remote working in Spain
- The law 10/2021 considers remote working the work provided remotely for a minimum of 30% of the working day, within a reference period of three months.
- Remote working is voluntary and reversible, both for the company and the employee.
- Once remote working has been agreed upon, it is essential to draft an agreement in writing, signed by both parties.
- The agreement must include the changes in the conditions and requirements to provide remote services following the negotiation between the company and the employee.
With the entry into force of the new remote working regulation, most companies have regulated the conditions and requirements of this type of work through individual agreements with their employees.
Since its entry into force, some clauses have generated much controversy, to the point of being challenged by unions and workers.
The most frequent problem is that the law often refers to the provisions of collective agreements. However, most of these agreements have not yet been updated.
The three critical points of the remote working law in Spain
The three critical and most discussed points about the conditions regulated in remote working agreements:
Compensation for expenses derived from remote working
This condition is mandatory in the agreements. Law 10/2021 refers to the provisions of the applicable collective agreement. But except for recently negotiated collective agreements, such as that of financial credit establishments, few others currently regulate the compensation of expenses from remote working.
There have already been several rulings on this condition, like the judgment of the National Court of March 22nd, 2022, determining:
The company must pay the expenses for remote working; otherwise, the employee may request the termination of their contract for serious breach and receive compensation for it.
In other words, non-compensation of expenses represents a serious breach by the employer.
The right to digital disconnection
Worker digital disconnection is another widely discussed mandatory condition. Courts have already considered null and void various clauses that imposed the availability of employees outside their working hours, referring to emergency circumstances in a generic and unspecified manner.
The National Court, determining such generic clauses to be abusive and therefore null, determines:
No right is absolute since its exercise coexists with other rights that may occasionally conflict. But the limits to the right to digital disconnection in remote working cannot be established unilaterally by the employer. It will be subject to what is established in collective bargaining or to what is agreed upon between the company and the workers’ representatives (art. 88 Data Protection Act)
In other words, if there are no specifications in the collective agreement, the company must negotiate with the legal representatives and establish a digital disconnection protocol. The protocol will detail the specific circumstances in which workers must attend to the company’s requests once their working day has ended.
Occupational risk prevention and remote working
Can job safety analysis (P.R.L in Spain) technicians enter the worker’s home to verify regulation compliance?
In a recent judgment, the National Court established two key points:
- When a risk assessment requires access to the worker’s home, it must be justified by a specific reason. It requires prior written notification to the worker and the safety representatives.
- Even so, the worker can deny access. In that case, the evaluation will follow the information referred to in the first section of Article 16.2 of the Remote Working Law.
Considering the above, and pending the update of collective agreements, companies should review, update, and correctly adapt the remote working agreements signed with their employees under the new regulation. In this way, they will avoid increasingly harsh sanctions and legal proceedings.
Has your company correctly adapted remote working agreements?
Carlos Rivero
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