20 practical issues on remote working

The Remote Work Act 10/2021 came into force on 11 July, although its application has been put on hold: the Act expressly excludes remote working from its scope of application as a health containment measure derived from COVID-19.

Since September 2021, as a result of the decrease in the cumulative incidence of COVID infections, regional governments have adopted decisions aimed at eliminating capacity restrictions and relaxing other measures.

In this context, many companies, instead of returning to a system of 100% face-to-face working, have opted to establish hybrid systems combining face-to-face and remote working.

However, at this time, infections in Spain are rising again and the trend is towards a return to restrictions.

Until there is a complete return to normality, it is likely there will be further periods in which remote working: (i) is seen as a containment measure against health crisis; or (ii) is a way to promote flexibility at work.

Thus, with this Newsletter we intend to address some practical issues and judicial decisions to be taken into account with regard to remote working:

1. As a result of the increase in cases, is it possible to justify remote working as a health containment measure to prevent the spread of COVID-19?

Given the situation caused by the sixth coronavirus wave, it would be possible.

In the event that the company has established distance working under the Remote Work Act, it should clarify if this form of distance working is still in force or whether it has been suspended as a result of the need to promote remote working as a health containment measure (in accordance with the Third Transitional Provision of the Act). In the latter scenario, the measure should be linked to the sixth coronavirus wave and the company's obligation to ensure the health and safety of its employees.

In any case, the terms of the remote work agreement itself, the provisions of collective bargaining and/or the applicable collective bargaining agreement shall apply.

2. Is all distance work affected by the Remote Work Act?

No. In addition to the exception relating to remote work as a measure of containment against COVID-19, the Act provides that it shall only apply where the work is organised or the work activity is carried out at the worker's home (or at a place chosen by the worker) on a regular basis.

For these purposes, the regulation itself defines remote work as "regular" when, in a reference period of three months, a minimum of 30% of the working day is carried out, or the equivalent proportional percentage depending on the duration of the contract.

Therefore, companies that allow distance work for one and a half days a week for a period of three months must comply with the provisions of the Remote Work Act.

3. Are there any contractual modalities that require a minimum of face-to-face attendance?

With regard to training contracts and agreements entered into with minors, based precisely on their raison d'être, the rule only allows remote working when a percentage of face-to-face services of at least 50% of the working time is guaranteed (which may be modified by collective bargaining provided that it is not entered into with minors).

In the rest of the contractual modalities, 100% of distance work can be agreed when the duties inherent to the job position can be performed remotely (for example, in reception services, and by waiters, floor maids, catering, etc., it would be difficult to perform work remotely).

4. Could remote work be imposed by the employer?

No, distance work is voluntary for both the employee and the company.

In the absence of an agreement, it cannot be imposed unilaterally by the employer by means of a substantial modification of working conditions (without prejudice to the right to work remotely that may be recognised by law or collective bargaining for specific individuals or groups, for reasons of work-life balance, training needs or gender-based violence).

5. What formal requirements must be followed to implement a remote work system?

Prior to the beginning of remote working, a written agreement between the company and the employee must be formalised.

A copy must be given to the workers' legal representatives.

The remote work agreement must regulate the following matters:

• Inventory of means, equipment and tools for the development of the work, consumables and movable elements, and the maximum period for their renewal.
• Listing of the expenses, the form of quantification of the compensation that the company is obliged to pay and when and how to do it.
• Employee working hours and availability rules.
• Percentage and distribution, if applicable, of remote and face-to-face work.
• Work centre to which the remote worker will be assigned.
• Distance working place chosen by the worker.
• Notice periods for the exercise of reversibility situations, if applicable.
• Means of business control of the activity.
• Procedure to follow in case of technical difficulties.
• Instructions for the protection of specific data and information security, with the participation of workers' representatives.
• Duration of the agreement for the provision of remote services.

6. Can remote working be reversed or modified?

Yes, either party can decide to switch from distance work to a face-to-face system. The percentage of face-to-face working can be also modified. The reversion and/or modification is subject to the terms established in the collective bargaining agreement or, failing that, in the remote work agreement entered into between the company and the employee.

For these purposes, it will be advisable to include specific cases in which the agreement will be suspended or modified, such as, for example, in case of new COVID-19 containment measures, or in case of production and/or organisational needs.

7. What role do collective bargaining agreements play in the field of remote working?

The Act expressly reserves to collective bargaining the regulation of relevant aspects, such as (i) the identification of the jobs that can be performed remotely, (ii) the conditions of access and development of the activity, (iii) its maximum duration, (iv) the mechanism for determining compensation for expenses, as well as the terms of the provision and maintenance, and (v) the additional contents in the agreement.

8. What means, tools and equipment must be made available to the worker and what expenses must be compensated?

Distance work may not involve the employee in the assumption of expenses related to the equipment, tools and means linked to the development of their work activity.

In practice, companies are providing workers with a laptop, mobile phone, mouse and separate screen to carry out their work remotely. In some companies, instead of purchasing this equipment, they are even giving workers a lump sum to purchase the equipment they need, subject to justification of expenses and confirmation of its exclusively professional use.

Many companies are also opting to pay a proportionate share of the cost of utilities and internet connection, or even provide a mobile phone with unlimited data.

In any case, the mechanisms for determining and compensating these expenses may be established through collective bargaining agreements.

9. What amount should be paid if there is no regulation in the applicable collective bargaining agreement?

In the absence of a conventional framework and clear parameters for quantifying the compensation of expenses, our recommendation is to fix in individual agreements a reasonable amount to cover the costs associated with distance working. It is essential in these cases to make it clear that the agreed amount will be subject to review as soon as the collective agreement of reference establishes a regulation in this regard.

10. Is expense allowance a salary?

No, it is a supplement and therefore non-salary. In particular, the Social Security General Treasury Newsletter RED 3/2021 of 28 May 2021 clarifies that, as it is compensation for expenses, this concept should not be included in the social security contribution base.

However, the amount must be reasonable. Excessive compensation, without justification and for non-professional purposes may cause this concept to be classified as salary and, consequently, to be included in the contribution base and subject to taxation.

11. Should meal allowance continue to be paid on remote working days?

The National Court of Appeal, in its judgment of 22 September 2021 (judgment 196/2021), has analysed this issue and considers it appropriate to stop paying the compensation for meals that employees have been receiving once they start working remotely. It considers this differential treatment with respect to face-to-face workers to be justified by the fact that, in these cases, remote workers do not have to travel at all.

Along the same lines, with regard to the transport complement, it will be necessary to check whether or not it is a salary complement (for which it is required to analyse the applicable collective agreement and the company's practice). If it is a non-salary complement linked to compensating the expenses incurred by the worker in travelling to the workplace, the company would be entitled not to pay it in the case of distance work.

12. What powers does the company have to verify the fulfilment of the employee's obligations?

The company may adopt the measures it deems appropriate for surveillance and control, including the use of telematic means, keeping in any case due consideration for the dignity, privacy and right to data protection and digital disconnection of the worker, in accordance with the Data Protection and Guarantee of Digital Rights Act. It is not possible to require the installation of applications on devices owned by the worker.

13. Is the time recording obligation still applicable?

Yes, the mandatory recording system must accurately reflect remote working time, without prejudice to flexible working hours. It must also include the beginning and end of the working day, in accordance with the provisions of collective bargaining.

14. How must the company's obligations regarding occupational risk prevention be fulfilled?

The company must pay special attention to the psychosocial, ergonomic and organisational factors that are characteristic of this type of work (in particular, in relation to the distribution of working hours, availability times, breaks and disconnections during the working day).

Bearing in mind that visiting the home of the remote worker requires his or her permission, the usual practice is that the worker himself or herself completes a self-assessment test for occupational risks, as a result of which the prevention service must analyse the suitability of the job and make recommendations. The worker must also receive specific training in the prevention of occupational hazards associated with distance work.

15. Once the remote work agreement has been concluded, can the employee unilaterally provide distance work services from another location?

In the remote work agreement, the employee must state the place where the services are to be provided. Our recommendation is that any change of workplace must be notified in advance and authorised by the company.

16. What happens to existing remote workers before the entry into force of the Act?

The Act provides for a period of three months from its entry into force (i.e. until 11 October 2021) to formalise or make adaptations to existing distance work agreements.

17. What liabilities may arise for the employer in the event of non-compliance?

The Infringements and Penalties in the Social Order Act classifies the failure to conclude the remote work agreement as a serious penalty, for which the company may be fined up to EUR 7,500.
Similarly, in the absence of compensation of expenses, there would be a risk that employees benefiting from distance work would sue for payment of expenses incurred in the last year as a result of remote work.

18. Could the employer refuse to grant remote work?

In principle, the law requires an agreement between the parties.

However, in the event that the employee's request for remote work is based on reasons of conciliation, it will be necessary to analyse each situation on a case-by-case basis.

In this sense, the High Court of Justice of Cataluña, in its judgment of 15 April 2021 (judgment 2105/2021), has analysed a case concerning the refusal of the company to grant remote work to a worker who requested it on the basis of his right to conciliation. The Court upheld the company's refusal on the grounds that it lacked the minimum necessary infrastructure to carry it out and added that the worker had not accredited the negative impact that providing the work in a face-to-face format would have on the work-life balance.

19. Could the worker refuse a change of workplace on the basis of remote work?

The limitation of the employer's power to transfer an employee has been analysed by the High Court of Justice of Galicia, in its judgment of 8 June 2021 (judgment 2070/2021). In this ruling, the transfer based on organisational and economic reasons was declared unjustified due to the fact that the transferred worker performed administrative tasks that could be carried out remotely and that the company had a remote work protocol in place.

Therefore, it will be necessary to analyse the specific circumstances of each case and check whether the tasks to be performed by the transferred employee require his/her presence in the new assigned centre.

20. Could the employer require workers to return to face-to-face work after COVID-19 remote working?

Yes. The Supreme Court, in its ruling of 20 October 2021 (ruling 1041/2021), states that the return to work of workers exempted from this obligation following the declaration of a state of alarm is an organisational decision that can be taken by the company.

The High Court understands that there is no obligation to negotiate in advance with the legal representatives of the workers, nor is there a substantial modification of conditions, as these measures are due to the exceptional situation arising from the state of alarm due to COVID-19.

Authors: Cristina Grande (Head of Employment at Ashurst Spain) and Carmen Gordillo (Employment Associate at Ashurst Spain).