The declaration of a state of alarm in Spain as a result of the COVID-19 pandemic brought about changes in all areas of life. Surely you remember the proliferation of regulations established by the government and the immediate measures taken by organisations in response. Well, today we can affirm that many of them are here to stay and a clear example of this is the teleworking: its practice has increased from 4% (2020) to 35% (currently) at the national level.
In this article, you will find information about the new Law on Telecommuting - Law 10/2021 of 9 July 21. published in the BOE on 10 July 2021 and which came into force on 11 July of the same year, except for final provision 1ª.2 (relating to the modification of art. 40 LISOS), which came into force on 1 October 2021: who is affected, what is it for, what are its limits and much more, below.
But first... What is telework?
Article 2 of Law 10/2021 sets out the differences between telecommuting, teleworking and face-to-face work:
(a) 'teleworking' means a form of work organisation or performance of work under which work is carried out at the worker's home or at a place chosen by the worker, for the whole or part of the working day, on a regular basis.
(b) "telework" means remote work carried out through the exclusive or predominant use of computer, telematic and telecommunication means and systems.
(c) 'on-site work' means work performed at the place of work or at a location determined by the employer.
Telework Law: which workers are affected?
Law 10/2021 applies to employees, i.e. those employment relationships included in Article 1.1 of the Workers' Statute. However, in order to be considered as teleworking or remote work, the worker must perform at least one 30% of their day in this mode, for a period of three months - or the equivalent percentage depending on the duration of their contract.
Therefore, if we apply the law to a hypothetical case in which the working day is five days, the worker must work remotely for at least one and a half days (five days x 30%).
A separate mention should be made for contracts concluded with under-age workers, with internship contracts and training contracts. In this case, the time is extended to 50% of the total working day; in other words, teleworking is possible if at least 50% of the working day is in person.
Is teleworking mandatory?
The answer is no: teleworking is not compulsory, but voluntary, both for the company and for the worker. Therefore, if the worker does not wish to carry out his or her activities remotely, this does not imply grounds for dismissal, nor does it affect his or her salary, stability, working hours, promotion or professional training.
Law 10/2010 states that after reaching an understanding between the worker and the company, an agreement must always be signed.
This agreement can be written into a first contract or at a later point in time (annex), but always before the start of the telecommuting, and it must contain the conditions of the telecommuting. Otherwise, the company exposes itself to the risk of sanctions ranging from €70 to €150 for minor penalties, and from €751 to €225,018 for serious and very serious penalties.
Therefore, the agreement for teleworking or telecommuting is obligatory and must reflect the conditions, rights and obligations of the worker and must be made in writing on an individual basis. Once it has been signed, the company must deliver a copy of all the agreements to the workers' legal representative within 10 days, who will sign to record the delivery. Finally, it will be sent to the employment office (SEPE).
Rights and Obligations in Telework
The Act includes a number of rights to be guaranteed to remote workers. Among them, it states that:
- There should be no unjustified differences between face-to-face and remote working: companies should implement preventive measures against harassment labour and ensure that teleworkers access and exercise work-life balance/corresponsibility rights in the same way as face-to-face workers.
Article 4.3 "Companies are obliged to avoid any direct or indirect discrimination, particularly on grounds of sex, age, seniority or professional group or disability, against workers providing services at a distance (...)".
Article 4.4 "In accordance with the provisions of the applicable regulations, companies shall take into account the particularities of remote working, especially teleworking, in the design and implementation of measures against sexual harassment, harassment on grounds of sex, harassment on discriminatory grounds and harassment at work.
- Workers carrying out occasional telecommuting, shall have the same rights as those established for persons engaged in non-casual work.
Article 4.1The following provisions shall apply: "Persons working at a distance shall have the same rights as they would have had if they had worked at the company's place of work (...)".
Similarly, we find, among others:
- Right to training: equal access and training for teleworking shall be ensured. They shall not suffer prejudice to any of their working conditions.
- Right to career advancement: opportunities, even if they are face-to-face, must be reported in writing.
- The right to receive sufficient means: the necessary equipment will be delivered to them according to the inventory of the teleworking agreement.
- The right to occupational risk prevention: the assessment shall take into account the characteristics of the job, including availability time, breaks and disconnections. If a visit to the preventive site takes place, it shall be authorised by the worker and a written report shall be issued.
- Right to privacy and data protection: the use of telematic means must respect the employee's rights. The company may not require the installation of programmes on devices owned by the worker, nor the use of these computers for teleworking.
Time and control with the new telework law
Articles 13 and 14 of Law 10/2021 state the following:
Article 13. Right to flexitime under the terms of the agreement.
"In accordance with the terms of the telecommuting agreement and collective bargaining, while respecting mandatory availability times and working and rest time regulations, the telecommuter may flexibilise the established hours of service provision.
In other words, flexitime will only be allowed if it is agreed with the employer in the telework agreement.
Article 14. Right to proper time registration.
"The time recording system regulated in Article 34.9 of the Workers' Statute, in accordance with the provisions of collective bargaining, must faithfully reflect the time that the worker who performs remote work dedicates to the work activity. This must be done without prejudice to flexible working hours and must include, among other things, the start and end time of the working day".
Therefore, although the law establishes that flexible working hours are necessary and compulsory, time recording, time control or clocking-in of the worker is still mandatory.
With regard to the control exercised over teleworkers, Article 22 of Law 10/2021 indicates that, provided that the right to dignity is respected, companies may adopt surveillance measures to verify that workers fulfil their obligations and duties at work.
Who bears the costs of teleworking?
Teleworking does not imply any modification of the salary received, neither to the detriment nor to the benefit of the worker. However, according to Article 12, the employer shall bear or compensate the costs of teleworking. Collective agreements may establish mechanisms to compensate for these expenses.
In the telework agreement, the transfer of materials, equipment and tools that are essential to carry out the work activity, including the Internet and electricity, will be agreed upon.
What do you think about the Telework Law in Spain?
Teleworking has now been successfully implemented in many Spanish companies and more than 40% plan to maintain it in the future.
At Ódice Abogados we put at your disposal, specialist lawyers in the area so that, if you would like any further information, you can consult us without any obligation.
You can consult the full content of the Law 10/2021 by clicking here