Remote Working Contract – Rights and Obligations

Written by Josep Conesa

Employment and insolvency lawyer

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dismissal for misconduct by a remote-working employee: 

A recent ruling from the Social Division of the High Court of Justice (TSJ) of Castilla y León upholds a dismissal in which the employee had abused his rest breaks whilst working remotely.

It remains to be seen how case law will develop in this area, but remote working does not in itself mean that the company is granting different working hours, a different schedule, or different break entitlements from those agreed in the original employment contract.

In the case considered in this ruling, there is no evidence that any actual, tangible harm was caused. However, there are circumstances that support the conclusion that the claimant's insubordination was of such a degree as to constitute a clear breach of workplace discipline. This is because the claimant repeatedly persisted in his conduct despite warnings from his line manager. The dismissal was therefore deemed fair, on the grounds that he failed to comply with work instructions, improperly exceeded his authorised rest breaks, carried out no work-related activity during those periods, and continued to behave in this way without seeking the required authorisation.

WHO DOES REMOTE WORKING APPLY TO:

Scope of application under the Remote Working Act:  Remote working applies to employed labour relationships in which, over a three-month reference period, at least 30% of working time is carried out remotely. "Remotely" is understood as a form of work organisation that, on a regular basis, is performed at the employee's home or at a location of their choosing, for all or part of their working day.

DIFFERENCE BETWEEN DISTANCE WORKING AND TELEWORKING:

This distinction is important at a conceptual level, because teleworking is reversible, whereas distance working is not.

With effect from 13 October 2020, Royal Decree-Law 28/2020 of 22 September has regulated distance working, drawing a distinction between:

• distance working, as a form of work organisation or activity whereby work is performed at the employee's home (or at a location of their choosing), for all or part of their working hours, on a regular basis. The definition set out in Article 13 of the Workers' Statute proves insufficient to address the specific characteristics of teleworking, which requires not only that work be performed predominantly outside the company's premises, but also that it involve intensive use of information and communication technologies.

• teleworking, understood as distance working carried out exclusively or predominantly through the use of IT, telematic and communication systems and tools (Art. 2 Royal Decree-Law 28/2020 of 22 September)

WHAT COSTS MUST THE company REIMBURSE THE employee FOR WHEN TELEWORKING:

Podcast

Commentary on the ruling of the National Court of 22
September 2021.

REMOTE WORKING CONTRACT TEMPLATE:

Download here a template of supplementary teleworking clauses adapted to Royal Decree-Law 28/2020 on remote work and teleworking.

TELEWORKING REQUIREMENTS:

1. Voluntary nature: remote work is voluntary for both the employee and the company. This entails the reversibility of this arrangement.
2. Remote work agreement: the agreement must meet the following requirements:
   a) it must be formalised in writing before the start of remote work. The agreement may be incorporated into the initial employment contract or added at a later stage, but must in any case be formalised in writing. Failure to do so constitutes a serious infringement (LISOS, Art. 7.1).
   b) without prejudice to any provisions set out in applicable collective agreements, the minimum content must be as follows:

• Inventory of the equipment, tools and resources required, including consumables and movable items, as well as their useful life or maximum renewal period.
• A list of the expenses that the employee may incur as a result of working remotely.
• The method for calculating the compensation that the company is obliged to pay, together with the timing and manner of payment.
• The employee's working hours and, where applicable, the rules on availability within those hours.
• Percentage and distribution between in-person work and remote work, where applicable.
• Company workplace of the company to which the remote worker is assigned and where, where applicable, part of their in-person working hours will be carried out.
• Remote work location chosen by the worker for carrying out remote work.
• notice period notice periods for exercising reversibility arrangements, where applicable.
• Means of employer monitoring of work activity.
• Procedure in the event of technical difficulties preventing the normal performance of remote work.
• Instructions on data protection and information security.
• Duration of the remote working agreement.

AMENDMENT OF THE employment contract:

1. c) may only be amended by written agreement, concluded prior to its implementation, between the worker and the company.

Contact us if you need assistance with the collective negotiation of remote working terms and conditions:

REMOTE WORKERS' RIGHTS:

• The right to professional development, including the right to training and career progression.
• The right to adequate provision and maintenance by the company of all means, equipment and tools necessary to carry out their work.
• The right to reimbursement and compensation of expenses by the company.
• The right to a flexible working schedule in accordance with the terms set out in the remote working agreement.
• The right to accurate working time records, which must faithfully reflect the time devoted to work activities by the remote worker.
• The right to occupational health and safety protection.
• The right to privacy and data protection.
• The right to digital disconnection outside working hours.

EQUALITY FOR REMOTE WORKERS:

Equality and non-discrimination: remote workers are entitled to the same rights as on-site workers.

In particular:

• The right to receive the same remuneration and supplements as on-site workers
• The right not to suffer any detriment, particularly regarding working hours or pay, as a result of technical difficulties or other issues not attributable to the employee
• Companies must take remote workers into account when implementing equality plans, applying anti-harassment measures, and protecting victims of gender-based violence.
• Remote workers also enjoy the same rights as on-site employees regarding work-life balance and responsibilities, including the right to adjust their working hours.

Obligations of the employee when working remotely:

For their part, remote workers are required to:

• Follow the instructions established by the company regarding data protection
• Comply with the company's conditions and instructions on the use and care of IT equipment and tools.
• The company may implement monitoring and control measures to verify that the employee is fulfilling their work obligations and duties, including the use of remote monitoring tools, with due respect for their dignity.

SALARY ADAPTATION IN REMOTE WORKING:

For the purposes of applying this regulation, the company may not absorb or offset any conditions that the employee was already enjoying.

Regarding additional remuneration or expenses, some interesting solutions are worth considering, such as those proposed by Borja Aranguren of Cobee in his article in El Economista dated 25/11/20.

when must a remote working contract be updated:

Remote working arrangements that predate 23 September 2020 and are governed by collective agreements or bargaining agreements will be subject to this regulation from the moment those agreements expire, and in any event no later than 23 September 2021.

Where the remote working arrangement stems from an individual agreement, the deadline for adaptation is 23 December 2020.

BACKGROUND TO THE RISE OF REMOTE WORKING:

From early May onwards, against a backdrop of greater control of the pandemic and the gradual rollout of the de-escalation plan, significant uncertainty persisted, dependent on the trajectory of the pandemic and the pace at which activity returned to something approaching normality. In short, on top of the challenges already facing the Spanish labour market, new ones have emerged, compelling businesses to address the post-COVID-19 shifts in globalisation and digitalisation, and to adopt effective measures to boost productivity, improve employment quality, and reduce wage and professional gaps. At the same time, the health crisis demonstrated that remote working was the most effective mechanism both for maintaining business continuity during the pandemic and for preventing contagion. The crisis not only reinforced a pre-existing trend towards normalising remote work, it elevated remote working to the status of a preferred arrangement.

CURRENT SITUATION:

Today, rather than traditional home working, what has emerged is remote and flexible working, a model that allows work to be carried out in new environments that do not require the physical presence of the worker at the employer's premises.

In short, the widespread adoption and normalisation of remote working without an adequate legal framework, one capable of providing the necessary certainty and guarantees, risks distorting the fabric of employment relations and undermining conditions enshrined as fundamental in accordance with our constitutional and legislative framework.

This is precisely why this Royal Decree is both important and necessary: it establishes equal rights between remote and on-site workers, and confirms that any teleworking arrangement must be voluntary and reversible.

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