After implementing remote work as a preferred measure to avoid the spread of COVID-19, together with the development of information and communication technologies, the tendency to resort to remote work has increased, and has led to the need to regulate this form of work through a specific law on remote work in Spain. In this sense, the Ministry of Labour has recently published the Draft Bill on remote work, a regulation which, after being submitted for proposals in public consultation, has been passed on to the social agents for its negotiation.
The Draft Bill on remote working published by the Ministry of Labour seeks to regulate the framework on remote working to provide legal certainty to this form of work since until now it was only regulated in Section 13 of the Workers' Statute.
The text (which has four chapters, twenty-one sections, one transitional provision and four final provisions), defines remote work as "the work carried out from the employee's home or at the place they have freely chosen, for all or part of their working day, provided that it is on an occasional basis". While, teleworking is defined as "the work carried out through the exclusive or prevalent use of computers, telematics and telecommunication means and systems".
The main aspects that this Draft Bill regulates are summarised below:
1) Equal treatment and non-discrimination principle:
Remote employees shall have the same rights as those providing services at the company's premises and their working conditions will not be negatively impacted, including remuneration, employment stability and promotions, for carrying out their activity, in whole or in part, on a remote basis. Additionally, companies are obliged to avoid and prevent any discrimination, direct or indirect, to avoid any type of harassment.
2) Voluntary nature:
The text states that remote work shall be voluntary for the employee (the company cannot impose it unilaterally) and shall require a written agreement (a copy should also be provided to the legal representatives of the employees). This agreement shall set forth the minimum employment terms and conditions, including the inventory of the means, equipment and tools made available to the remote employee, as well as, the schemes for compensating costs, the working hours, and the assigned work premises, among others.
Additionally, based on the voluntary nature of this form of work, the Draft Bill regulates that employees shall have the right of possibly countering the remote work and modifying the percentage of rendering services in person, provided that they request it after a period equivalent to the probationary period has elapsed. If the company refuses, it must justify in writing the technical and organisational reasons for its denial.
3) Employee rights:
The Draft Bill regulates the basic rights of remote workers, such as the right to training, promotion, labour risk prevention, conciliation and co-responsibility between men and women, and collective rights, as well as the following:
- Right to flexible working hours: employees may change their working hours (provided that they respect any rules on working time and resting periods) except, if applicable, for any periods that are mandatory or limits that may have been set in the agreement. Additionally, the regulation establishes the obligation to register hours, which means the employee's working hours must accurately reflect the time the employee has devoted to work. It must include, among others, the time when the work begins and ends, as well as the time at which any equipment is turned on or off.
- Right to full compensation of expenses: the company shall bear the costs, direct or indirect, related to the provision of services for remote work as regulated by means of a collective bargaining agreement or an agreement between the company and the employees' legal representatives, who will determine the specific payments for the full compensation of such expenses. Additionally, the company is in charge of providing the necessary means, equipment, and tools for the provision of services (in accordance to the inventory established in the agreement).
- Right to digital "switch off": The Company must grant the digital "switch off" of the remote employees and must limit the use of technological means during the employee's working periods in order to avoid using them during the employee's resting periods.
- Right to privacy and data protection: The Company must guarantee the right to privacy of the remote employees and their data protection. Therefore, any monitoring mechanism must be appropriate, necessary and proportionate. In this sense, the Draft Bill regulates the possibility for the employer to monitor the activity of the remote employees, but these means may not infringe the right to privacy of the employee.
4) Special regulations applicable in the event of occasionally providing services remotely due to force majeure:
- For family circumstances: In the event of illness or accident of up to a second-degree relative, a spouse or unmarried partner that essentially requires the presence of the employee, the employee shall be entitled to carry out their work remotely for a maximum of 60% of their normal working hours. That is, as long as it is technically and reasonably possible, and for as long as the situation justifying the exercise of this right persists.
- For corporate purposes: In the event of force majeure that temporarily interrupts or prevents a company's activity, including any environmental protection reasons, companies must adopt forms of remote working, whenever these are technically and reasonably possible, rather than measures of suspension and reduction of working hours. This will also require a previous notification to the employees' legal representatives.
In conclusion, and although there is still a long way to go before the Remote Work Law is approved in Spain, since this Draft Bill is currently being negotiated with the social agents, there has been a significant progress in the aim of regulating this issue. Although this issue was not sufficiently regulated before the pandemic crisis caused by the COVID-19, it ultimately proved to be a beneficial way of working for both companies and workers, requiring specific regulation.