- THE RISE OF TELEWORKING
According to a study by Adecco, a consultancy firm, even before the COVID-19 pandemic, the amount of people working from home was on the rise in Spain. The number of people doing their daily work duties from home has been gradually increasing over the last few years and in the fourth quarter of 2019 it rose to 1.5 million people, around 7.9% of workers. Evidently, the government’s lockdown measures during the state of alarm which came into force as a result of the COVID-19 pandemic made it compulsory for workers to work from home when possible to do so, and as a result we have seen an exponential increase in the amount of people teleworking over the last few weeks.
But it doesn’t seem to be a passing phase after which we will go back to our old way of working. Teleworking is here to stay. Although when it emerged it had the dual objective of allowing a more flexible working schedule and promoting a work life balance for employees, it seems that the sheer volume of workers now teleworking which was a consequence of the coronavirus outbreak is actually making businesses discover new ways of operating, both in terms of reducing the costs of infrastructure and essential supplies and also -paradoxically- promoting teamwork and improving the quality of customer service.
- THE DEFINITION OF TELEWORKING
Distance working (also known as teleworking) is defined according to article 13 of the Legislative Royal Decree 2/2015 of 23rd October in which the Revised Text of the Statutory Law of Workers is approved.
The fundamental notes on distance working, in accordance with the regulation contained in Article 13 of the Workers’ Statute, are as follows:
- It takes place “predominantly” at the worker’s home or elsewhere, as an alternative to on-site at the workplace.
- It requires a written agreement with the employer, which can be simultaneous with or subsequent to the employee’s employment contract.
- The employee has the right to to receive at least the total remuneration established in accordance with his/her professional group and functions, and shall also have all the rights of the other employees at his/her workplace, except those inherent to the performance of work in person.
- The employer must make sure the employee has appropriate access to profesional training for the job, which will in turn provide appropriate opportunities for promotions. They must also inform employees who are teleworking about vacant jobs for their on-the-spot development at their workplaces.
- Teleworking employees have the right to appropriate security and health protection.
- They may exercise the rights of collective representation in accordance with the law and must be attached to a specific workplace in the company for this purpose.
- KEY ASPECTS TO TAKE INTO ACCOUNT
The generality and lack of detail in the legal regulation of teleworking has meant that collective agreements, company agreements and legal doctrine have contributed to a series of relevant aspects that should be taken into account when implementing this figure within the company:
- Written formalisation– As required by Article 13 of the Workers’ Statute, teleworking must be formalised between the parties in writing, either in an annex to the employment contract or at a later stage. This formality is assimilated to that of employment contracts under Article 8 of the Workers’ Statute. However, if it is concluded after the conclusion of the employment contract, neither a contractual novation nor a new employment contract is required.
- Timetable and working day- The working hours of the working day should be set out in writing, as well as whether at any time it will be necessary for the worker to go to the workplace to provide services or whether he will have to travel outside his home.
- Temporary or permanent nature – It must be established whether it is a permanent or temporary form of work. To this end, it is advisable to indicate the indefinite nature or the duration of the teleworking regime, and the notice.
- Place of work– The company must ensure that the worker has a physical space to work that meets the minimum conditions required for the job, such as lighting, sound insulation, ventilation, temperature, etc., by carrying out the corresponding evaluation of the job by the occupational risk prevention service, thus complying with the provisions of Article 16 of Law 31/1995, of 8 November, on the prevention of occupational risks.
– In order to verify the correct application of the relevant health and safety provisions, the employer, the workers’ representatives and/or the competent authorities have access to the place of teleworking, within the limits of national legislation and collective agreements.
If the teleworker works at home, such access is subject to prior notification and the agreement of the teleworker.
In addition, the teleworker has the right to request inspection visits.
In this respect, and with regard to the current events arising from COVID-19, Royal Decree-Law 8/2020 of 17 March was published on 18 March, on extraordinary urgent measures to deal with the economic and social impact of COVID-19.
Article 5 of the aforementioned Royal Decree states the preferential nature of distance working in this situation. In particular, it states that organisational systems shall be established to enable the activity to be maintained by alternative mechanisms, particularly by means of distance working, with the company having to take the appropriate measures if this is technically and reasonably possible and if the necessary adaptation effort is proportionate.
With the aim of facilitating the exercise of remote working mode in those sectors, companies or jobs where it was not foreseen until now, it will be understood that the obligation to carry out the risk assessment, in the terms provided for in Article 16 of Law 31/1995, of 8 November, on the Prevention of Occupational Risks, has been fulfilled on an exceptional basis, through a self-assessment carried out voluntarily by the worker him/herself.
To carry out this self-evaluation, the Ministry of Work and Social Economy developed a questionaire for teleworking at home. The document was prepared at the draft stage of regulatory development and is not currently published as an annex to the aforementioned Royal Decree, and therefore does not appear to date among the official documentation provided by the ministries affected by Covid-19.
Salary- In terms of the salary, as indicated in article 13 of the Workers’ Statute grants the right to receive at least the remuneration corresponding to the worker’s professional group, in accordance with the applicable collective agreement or labour legislation, in the case of teleworking. As the worker will also have all the rights of the other workers in his workplace, except those inherent in carrying out the work in person, concepts such as transport bonuses or uniformity, for example, would not be applicable, as they would only correspond to workers providing services on the company’s premises.
- Costs and spending– It is necessary to establish who will assume and how the costs and expenses related to the technical tools for the provision of the service, such as computers, mobile phones, office equipment, supply and cost of internet connection, consumables, etc., will be borne by them. It is the employee’s obligation to take care of these tools diligently, if the employer makes them available to the employee.
- Protection in terms of security and health– By application of the occupational risk prevention regulations, the employer is responsible for the health and safety of the remote worker’s workplace.
In this sense, article 14 of the Law for Prevention of Work-related Risks states the duty of the company to “guarantee the safety and security of workers in all aspects related to work” and will adopt prevention measures when necessary.
In addition to the general obligation of prevention contained in this precept, the LPRL and the implementing regulations include specific obligations that the company must also adopt in relation to its employees. Specifically:
- Assessment of risks. Article 16 and 23.1 a) and c) of the Work-related Risks Prevention Law
- Planning and facilitating of working teams and ways of protecting the individual. Article 17 and 23.1 b) of the Work-related Risks Prevention Law
- Information and training of workers of risks in relation to their job role. Article 18 and 19 of the Work-related Risks Prevention Law
- Monitoring the health status of teleworkers. Article 22 and 23 of the Work-related Risks Prevention Law
Even Article 13 of the Workers’ Statute regulates the prevention of occupational risks that is also applicable to teleworking, recognising the “right of remote workers to adequate protection in terms of health and safety, with the provisions of Law 31/1995, of 8 November, on the Prevention of Occupational Risks, and its implementing regulations, being applicable in all cases”.
- Protocol for using IT equipment and telecommunications- The company, in the same way in which it does with employees who carry out their work duties in person within the workplace premises, can subscribe to a protocol for the use of computer and telecommunications means with the worker providing services by teleworking. This protocol will regulate aspects such as the use of the Internet, e-mail, mobile phones, passwords, downloading of programs, etc., as well as the control that the company can carry out on these computer means and on the use that the worker makes of them.
Even if the computer and telecommunications resources are owned or paid for by the employee, the protocol of use will still be necessary, since the employee will have access to the company’s networks. However, a certain degree of adaptation is likely to be required, given the peculiarities of the teleworking regime, for example in terms of working hours. An employer using monitoring tools should inform the employee of their use, and obtain the employee’s consent, in order to avoid any breach of the employee’s privacy and/or the inviolability of the employee’s home. Such monitoring shall be limited to the times when work is being done and shall be justified.
- Confidentiality and Protection online- It is highly advisable to subscribe with the employee to rules of conduct aimed at protecting and guaranteeing not only the confidentiality of the documents and data on operations and clients for which he or she provides services, but also the personal data of third parties contained in the computer, telephone or documentary media to which he or she has access. Likewise, in order to ensure the protection of business information, the employer must establish backup systems for the computer resources used by the employee to provide his or her services. Although remote systems, which do not require the active participation of the employee, should preferably be implemented, nothing prevents the employer from requiring the employee to make backups as part of his or her job duties. The company can also set up password systems or other security systems as it sees fit.
- – Insurance- It may be advisable to take out insurance to cover the risks with respect to the computer or documentary material with which the worker is providing services. In this case, it should be established who will be in charge of the insurance or its extension, and the rules that will be applied to the compensation received in case of an accident should be established.
- Other aspects: The company must establish the necessary measures to ensure access to training and functional mobility for teleworkers, the exercise of their trade union rights, and the availability of any other information provided to the rest of the workers, including vacant positions in the workplace or internal promotion.
- TELEWORKING AND WORK LIFE BALANCE
Furthermore, it should be borne in mind that Royal Decree Law 6/2019 (on urgent measures for equal treatment and opportunities between men and women in employment and occupation) and Royal Decree Law 8/2019 (on urgent measures for social protection and the fight against precarious employment in the workplace) have established measures that revolve around the right to the reconciliation of workers’ work and family life. Among these measures, Article 34.8 of the Workers’ Statute establishes the right of workers to adapt the duration and distribution of the working day in order to make effective their right to the reconciliation of work and family life, expressly establishing the possibility that all workers of the company may request the provision of their work at a distance for this purpose.
Dicho artículo establece como límite que las adaptaciones de la duración y distribución de la jornada sean razonables y proporcionadas en relación con las necesidades de la persona trabajadora y con las necesidades organizativas o productivas de la empresa. Por otro lado, en el caso de trabajadores que tengan hijos, tendrán derecho a efectuar dicha solicitud hasta que los hijos o hijas cumplan doce años.
La norma citada del Estatuto de los Trabajadores se remite a la negociación colectiva para la regulación de los términos de ejercicio del derecho de adaptación. En ausencia de pactos en la negociación colectiva, la norma establece un procedimiento en caso de que la empresa reciba una solicitud de teletrabajo, que obliga a la empresa a abrir un proceso de negociación con el trabajador durante un periodo máximo de treinta días. Tras dicho procedimiento, la empresa deberá comunicar por escrito: (i) o bien la aceptación de la solicitud, o (ii) una propuesta alternativa que posibilite las necesidades de conciliación, (iii) o bien la negativa a la solicitud, indicando en este último caso las razones objetivas en las que se sustenta la decisión.
Por tanto, y dada la vaguedad de la norma, en caso de que la empresa y el trabajador no lleguen a un acuerdo, serán los tribunales los que en último término den contenido a qué se entiende por adaptaciones “razonables y proporcionadas”, en relación con las necesidades de la persona trabajadora para desarrollar su derecho a la conciliación, por un lado, y con las necesidades organizativas y productivas de la empresa, por otro.
Another problematic aspect of the above-mentioned rule is that it allows teleworkers to request a return to their previous contractual modality “when the change of circumstances so justifies”, thus generating a great deal of legal uncertainty for the legislator, which will undoubtedly generate numerous legal proceedings, A particularly unfortunate result in the current context, in which the courts will have a significant work overload as a result of the cessation of their activity during the state of alarm of the Covid -19 and the numerous legal proceedings of all kinds that will undoubtedly cause the cessation of commercial and productive activity in Spain.
- TELEWORKING, DIGITAL SWITCH-OFF AND TIME RECORDING.
On another front, the right to digital disconnection of workers established in Article 88 of Organic Law 3/2018, on Data Protection and Guarantee of Digital Rights, and the obligation of the company to guarantee the daily record of the working day established by Royal Decree Law 8/2019, which includes the record of the working day of teleworkers, are two other potential sources of conflict between the company and workers due to the use of teleworking.
Not only must the company provide the necessary means for teleworkers to register their working hours, but it is also the company’s responsibility to establish and guarantee compliance with the working hours, overtime, holidays, permits and rest periods of teleworking workers with the same conditions and guarantees as those of workers providing services on the company’s premises.
- OTHER ASSUMPTIONS SURROUNDING TELEWORKING
As indicated at the start, teleworking comes with many undeniable benefits for the company, therefore, in most cases, the initiative to establish it will come from the company, and not from the worker’s request to provide his services at a distance.
There are various systems for access to this contractual modality, ranging from (i) the agreement between the company and the worker referred to above, (ii) the impossibility of providing services on the company’s premises, or (iii) measures aimed at protecting health, as is the case with recent government regulations, following the COVID-19 pandemic.
It is advisable for both the worker and the company to mutually agree to adopt this contractual modality, either because it has been the worker who has requested to work from home or because it has been the company that, for organizational, cost-saving or other reasons, requires the worker to provide services from home on a permanent or temporary basis, a few days a week or a month.
We cannot forget the voluntary nature of teleworking as stipulated in Article 13 of the Workers’ Statute and established by the Supreme Court, in its ruling of 11 April 2005 (RJ 2005/4060), when it stated that homeworking cannot be compulsory for the worker or unilaterally imposed by the company via Article 41 of the Workers’ Statute due to a substantial change in working conditions.
In relation to contractual terminations, the company can concretely carry out objective dismissals -which could be more common would be the lack of adaptation to the job-, or for disciplinary reasons -time violations, disobedience, or the continuous and voluntary decrease in work performance- which can open judicial procedures for dismissal.
For all these reasons, it is highly advisable that companies that opt for this type of service provision have a protocol that sets out the rights and obligations of both parties, and takes into account the aspects that have been contemplated in this article.
Author: Patricia Arias Tabernero
Senior Associate
Lupicinio International Law Firm
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