It has been three years now since teleworking arrived unevenly and with the greatest urgency in our lives due to the need for containment measures against COVID-19.
Conflicts over teleworking
In addition to considering teleworking currently as a mechanism to achieve work-life balance for workers, it is interesting to carry out a critical analysis of it in our country, reviewing those conflicts generated by the application of current legislation, jurisprudence and the difficulties of regulate the appearance of certain emerging groups.
It should be noted that teleworking is not something new and that it did not arise with the pandemic, but was already regulated in the 2002 European Framework Agreement on Teleworking, as well as in article 13 of the Workers' Statute. But in the year 2020 it takes a greater role due to the health emergency situation that forces companies to prevail over teleworking over face-to-face as virus containment measures.
What was a measure of urgent need and limited duration, was promoted by the Government to give greater presence to an underdeveloped labor modality in our country.
Spain has difficulties implementing it, due to the fact that our production system is mostly oriented towards services, tourism and manufacturing, sectors in which teleworking is not always feasible. In addition, the inconvenience is added that the business culture prioritizes the time spent in the office and is proportionally related to the worker's productivity.
With the entry into force of the Law 10/2021, of July 9, on remote work, minimum contents are already established and collective bargaining is advocated to reach agreements on the development of teleworking. And it is the collective agreements that acquire relevance regarding their regulation, as we have been able to verify with those published in recent years.
Judgments on teleworking
Through the application of legislation and collective agreements, some conflicts have arisen that have reached the courts. We point out some sentences that seem interesting to us due to the conflicts they resolve:
- One of the essential elements in this modality is the willfulness of both parties, the Supreme Court already in 2005 ruled and indicated that it cannot be a decision adopted unilaterally because said modification exceeds those contemplated in article 41 of the Workers' Statute in view of the fact that the worker makes available to the businessman his home being his workplace where he provides his services, which belongs to his private area and can be shared with third parties who may be affected by said decision. STS 2126/2005
- Either party may exercise the power to reversibilityIn addition, the National Court understands that it is not contrary to the norm that there may be different notice periods to be able to carry out the reversibility. In this case, a 15-day notice was agreed for the employer, while for the worker it was 1 month. SAN 4145/2022
- Teleworking and plus transportation, the Supreme Court understands that teleworkers are not entitled to the transport bonus, because the company paid the bonus depending on the start or end of the working day, justifying it because there were worse frequencies of public transport. STS 2253/2022
- In relation to Work accidents, I must highlight a judgment of the Superior Court of Justice of Madrid, in which it refers to an accident involving a teleworker who injured his hand when a bottle of water dropped in the kitchen of his home. The Court considers that the IT derives from an accident at work, justifying that the accident at work occurred within working hours and in the space configured as his private home, that is, the court assimilates it to if the accident at work had occurred within of the space enabled to serve a drink in the workplace, since this would have been considered in the same way as a work accident. STSJM 1396/2022
- One of the biggest conflicts that are arising in the Courts is in reference to the compensation of expenses, highlighting a judgment of the National Court in which it establishes that the clause of the contract on the compensation of expenses cannot be referred to the sectoral collective agreement if it does not establish any rule in this regard. The employer's obligation to compensate teleworking expenses is not exempted despite the fact that the sectoral agreement does not establish it. SAN 1132/2022
digital nomads
Finally, mention a new group of teleworkers called “digital nomads” which are those workers who provide their services through new technologies for foreign companies, but work in our country. Spain wants to attract the talent of these workers and we see it with the creation of a specific work visa for them or with tax advantages, but this is largely opposed to our labor legislation and our Social Security regulations, where it is not covered to these workers.
In conclusion, teleworking in Spain is still not a model that has reached our companies, despite being one of the requirements for retaining talent. The lack of specificity in the regulation and the referral to collective agreements creates legal uncertainty between the parties, which go to court to set interpretation criteria.
Andrea Moreno Armero placeholder image
Collaborator Labor Area of Tomarial
