First judicial pronouncements on remote work agreements
Published on 31st May 2022
After the intense expansion of remote work in the Spanish labor market, accelerated to a great extent by the Covid pandemic, and after the approval of Law 10/2021, better known as the Remote Work Law (hereinafter "LTD"), there are numerous practical questions that companies have to face on a daily basis, with no clear answers yet, neither in the regulatory nor in the case law field.
Little by little, the first judgments are being published that analyze certain clauses included in the remote work agreements entered into after the entry into force of the LTD. In this regard, the new judgment issued by the Spanish National Court's on 22 March 2022 can serve as a guide when dealing with the main practical doubts that arise in relation to remote work.
In particular, this judgment analyzes the possible nullity of different clauses of the remote work agreements signed by a company in the Contact Center sector. Specifically, the Court reaches the following conclusions:
- In order to comply with the requirement included in Articles 6.2 LTD and 64 of the Workers' Statute, which establishes that the company must provide the workers' legal representatives with a copy of all remote work agreements executed and their updating, it is sufficient for the company to previously communicate the content of the standard remote work contract, and subsequently send a copy of the contracts signed with the workers. All this, unless the collective bargaining agreement establishes otherwise.
- When the Company that draws up the entire clauses of the contract, and offers it to the workers, who only agree to it, it is a contract of adhesion. However, this fact does not determine its nullity. Adhesion contracts are produced in the context of the underlying inequality between employer and individual worker in the framework of labor relations, and as a consequence this circumstance must be especially taken into account when interpreting and analyzing the validity of some of its clauses.
- Failure to comply with the legal obligation to state in detail in the employment contract the means, equipment and tools that the employer must make available to the employee does not imply the nullity of the contract. The employee affected by the breach of this obligation could react, either by requesting the termination of the contract for serious breach by the employer (Article 50.1.c) of the ET), with the right to receive compensation of 33 days' salary per year of service, or by filing a judicial claim for compliance with this obligation, including compensation for any damages that may have been caused.
- With respect to the useful life of the means made available to the employee, which must also be stated in the contract, it is considered that the reference made by the company to the table of depreciation coefficients for tangible fixed assets of the Corporate Income Tax Regulations (8 years for computer equipment and 6 years for applications and systems) is reasonable, and the nullity of the clause establishing this reference is rejected.
- It is considered lawful to agree on the responsibility of the worker for the proper use and maintenance of the means and tools provided by the company, under the terms expressly established, and the company may pass on the cost of repairs resulting from the breach of this obligation, and from a proven misuse of the same.
- It is considered lawful the agreement whereby, in the event that the employee does not return these means or work tools at the end of the employment relationship, their value (taking into account their depreciation), may be compensated with the accrued wages and final settlement.
- It is unlawful to agree in the contract that the compensation of expenses will be that established in the sectoral collective bargaining agreement, when the latter does not quantify such compensation. Consequently, apart from the declaration of nullity of this clause, the employee will have the right to request the termination of the contract for breach of contract by the employer, or to request in court the fulfillment of this obligation with a claim for compensation for the damages caused.
- In relation to the times of availability of the employee, it is considered lawful to agree that during working hours he/she must be available by telephone and corporate e-mail. On the contrary, It is not lawful to agree that the employee will provides his/her personal devices, not even for urgent cases. Neither is the availability outside working hours, even in legally permitted cases, i.e., to deal with situations of proven urgency that may require immediate response, when this exception to the right to digital disconnection is imposed unilaterally by the employer.
- In terms of occupational risk prevention, self-assessment questionnaires are considered to be in line with the requirements of the LTD, as a methodology that combines the company's duty of prevention with the right to privacy that covers the employee's home. On the other hand, the employee's signature, at the beginning of the contract, of a generic, prior and unconditional authorization for the prevention service to enter the employee's home to evaluate health conditions, with a 7-day notice, is not considered to be in accordance with the law. This is because the law requires that in each case, the consent to carry out the visit must be justified and requested.
- In the matter of reversion, the fundamental idea conveyed by the judgment under analysis is that the remote work contract cannot make the reversion to face-to-face work conditional on the employer's authorization. Both parties may, if either of them so decides, reverse the measure, under the terms agreed in the collective bargaining agreement or, failing that, in the employment contract.
- Finally, the clause whereby the company reserves the right to adopt the measures it deems appropriate for the surveillance and control of compliance with labor obligations, including telematic tools, with respect for their dignity and personal data protection regulations, is considered lawful.
This ruling points out some of the controversial issues of the LTD, but there is no doubt that there are many issues that remain to be resolved. Therefore, it is essential to monitor closely the forthcoming judicial judgments.