The Workers Statute configures teleworking as a form of work organization to favor the organizational flexibility of the company, while increasing employment opportunities, and improving family reconciliation.
Telework based on the intensive use of new technologies allows, through the necessary regulation of necessary rights and obligations, to work remotely, and not on company premises.
Therefore, telework is defined as the organizational form in which, through information technology and within the framework of an employment contract, said work is carried out regularly outside the company premises, but it could be carried out in a traditional way within the employer’s premises (European Framework Agreement on Telework, 07/16/2002).
Can the company force its employees to telework?
No, if it was not agreed in the initial contract, then the option of teleworking was voluntary for the company and the worker. The worker cannot even be forced to telework by means of a collective agreement, since it is considered a change in the contractual regime that affects the personal sphere of the worker. Therefore, if a worker refuses to telework, the employer may not terminate the employment relationship.
Once the telework option is chosen, returning to the traditional work situation on company premises is only possible if it is agreed individually between the parties or if such reversal is regulated in a collective agreement.
What is considered remote work?
It is considered telework when the work activity is carried out mainly at the worker’s home or where he freely chooses, as an alternative to his on-site development in the workplace (article 13.1 of the Workers’ Statute).
Has the COVID-19 health crisis favored teleworking?
Indeed, the telework option has not only been ideal to face the health and social problems that the COVID-19 crisis has generated. In addition, the Government through Royal Decree-Law 15/2020, article 15, published in BOE of April 22, 2020, has extended the preferential nature of remote work over the ERTE option (temporary cessation or reduction of activity), up to 3 months after the end of the alarm state. Likewise, and with the same extension period, the Government configures teleworking as the option for the working day due to care duties in exceptional circumstances related to COVID-19.
What are the working conditions of the teleworker?
Teleworkers have the same rights as traditional workers who provide their services at the company’s workplace, except for those rights pertaining to the modality of on-site work, at the company’s offices.
Overtime in teleworking: the company is also obliged to pay them. When the worker performs part of his work remotely, using Information Technology resources (emails, videoconferences, sending reports and summaries by electronic means), this time computes exactly the same as the remaining work done by other non-electronic means.
Should the company continue to control the teleworker’s work time?
Yes, the control of the teleworker’s working hours remains the responsibility of the company, in compliance with current Spanish legislation. The company must record the worker’s day by day, and sum it up in the corresponding period to pay the workers’ compensation, and must provide a copy of the summary to the worker, along with the corresponding receipt.
If the worker is part-time, the company must make a daily record of the working time. The company’s obligation to full-time workers to make a daily record of the day only remains in the event that the worker performs overtime.
The right of the teleworker to have the company respect the limits of their working day and breaks remains intact, being the responsibility of the company to carry out the corresponding risk prevention schemes and programmes. The company must organize the worker’s activity guaranteeing their rest and compliance with limits and duration of their working day.
Can the teleworker reject the mechanisms defined by the company as means of controlling working times and their notification to the company?
Yes, based on the right to privacy and inviolability of the domicile of which the teleworker continues to enjoy. All in all, the company continues to have a legal obligation to define these means of control and the mechanisms for notification and declaration of the worker of his working time.
On the other hand, the registration and supervision of the time that the worker remains connected to the company’s intranet, and of its activity on the internet, for the purpose of control (under conditions) of the worker’s labor activity by the company, is not considered a violation of the privacy or the domicile of the worker. Said information may also be inspected by the Labor Administration.
Can the company not pay overtime hours to the teleworker who they believe is failing in his working hours?
Yes, but only if the company has previously made a clear definition of working times, in compliance with the Spanish legislation in force that regulates working hours and breaks, as well as an implementation of the telework time declaration and control systems, in accordance with the teleworker, and he performs conduct within his home that violates said guidelines and avoids the instruments of business control.
On the contrary, if the company does not define guidelines, criteria and rules that establish the schedules, breaks and minimum instruments to control the worker’s work activity, the employer will not be able to avoid the payment of overtime, as it would have generated a space of legal and impunity in the framework of telework.
If you have doubts about your legal position in your employment relationship, or contractual difficulties with your company, do not hesitate to consult with the legal department of the firm Pérez Parras Economistas y Abogados, and its lawyers specialized in Labor Law.