Legal implications of the implementation of the new telecommuting regulation
Commentary on the first decisions of the Courts on telework.
As a result of the outbreak of the COVID-19 pandemic, many companies have opted to a certain extent for the temporary application of teleworking. Royal Decree 28/2020 of 22 September and Law 10/2021 of 21 September on telecommuting established the regulation of this type of work, the application of which has sometimes improved the work-life balance of workers, and sometimes led to the assumption of new labour costs.
To date, there are still many doubts about the application of the new regulation, since, in many areas, the specific circumstances in which the employment relationship should be modified (type of expenses assumed by the company, compensation for the savings obtained by the worker, etc.) have been transferred to collective and individual bargaining.
Little by little, we are beginning to receive the first rulings from the Courts and we are beginning to get an idea of how the Courts are interpreting the new regulations. Among these, we can highlight the following:
Necessary regulation of expenses derived from remote work
The National High Court in its ruling of 4 June 2021 (not final) has limited the recognition of expenses derived from remote work carried out in the private homes of workers. The Court has determined that such expenses must be claimed in accordance with the provisions of telecommuting agreements, collective bargaining agreements or collective agreements of application, although it is not possible to claim them in general terms, it does open the door to individual claims, subject to justification and accreditation.
Transport bonus
On the other hand, the Courts have also been examining the impact that the teleworking modality has had on the transport bonus, which is none other than its elimination, as it has the same character of compensation and does not form part of the wage bill, it can no longer be paid when such travel does not take place. Otherwise, we would be accepting the salary nature of a concept which, controversially, is not (Judgments of the National Court of Appeal dated 30 April 2021 and 30 June 2021).
Impact of teleworking on working time
Distribution: the Judgment handed down by the National High Court rules on the repercussions of applying the teleworking regime after the lunch break and the company’s requirement to make up the time spent travelling home after lunch. On this point, the Chamber states that we are dealing with an irregular distribution of the working day and, therefore, it is not a requirement to work a greater number of hours, but rather to work an ordinary working day, but with a different distribution. In other words, by bringing forward the journey to the middle of the working day in order to work the rest of it at home, it is no more than bringing forward the return from the workplace, so it seems obvious that the worker, once at home, will work the remaining hours of the working day, even if part of them have been consumed in a journey that he will no longer have to make at the end of the day.
Right to reconcile personal and family life: in one case, the Court examined the possibility of working full or part-time through teleworking, stating that the refusal to grant it must be clearly justified by the company, adequately specifying the reasons why this possibility is granted to part of the workforce and not to the rest, as otherwise it would be declared null and void as discriminatory (STS of the High Court of Justice of Galicia dated 5 February 2021).
Internet or electricity disconnections for reasons beyond the employee’s control: Another of the issues debated in the courts is whether working time should be recovered when it is impossible to provide it for reasons beyond the employee’s control. In this case, the courts maintain that it is considered working time and should not be recovered since, in the case in question, the disconnections were caused by a factor external to the worker.
Indirect implications: indirectly, the advent of teleworking has also led to the modification of a commonly accepted belief, i.e. that the worker must attend the workplace in order to carry out his or her work. Thus, in the Judgment handed down by the TSJ of Galicia (8 June 2021), a transfer of a worker whose on-site work centre is modified is declared unjustified because the company offers the possibility of carrying out her work by teleworking, instead of moving to the new work centre.
Although we can affirm that many of these pronouncements can be defined as jurisprudential doctrine in case of reiteration, we must remember that in the Social Jurisdiction the analysis of the specific case carried out by each Court can lead to different solutions, so it is especially important to pay attention to the details and specific circumstances of each company and worker to foresee the repercussions of the new rules of the game and the interpretation that the Judges make of them.
