New Telework Law
The new telework law updates and increases penalties.
The new law was published in the BOE on 10/07/2021, coming into force the following day. The regulation, which has the status of a law, has its origin in the previous Royal Decree-Law 28/2020, of 22 September, on remote work, which, although it has been amended, maintains the defining characteristics of remote work so that the legal regime provided for in the regulation applies to it. The main changes mainly affect the stiffer penalties that may be imposed by the Labour Inspectorate in this area (increased by 20%) as of 1 October 2021. Likewise, age, seniority or professional group or disability are expressly included as a prohibition of discrimination (art. 4), obliging the company to ensure equality “and the provision of support, and making reasonable adjustments as appropriate” to these groups. In the same sense, and in relation to the general obligation that the previous regulation already imposed on companies to provide and maintain sufficient equipment, means and tools for remote workers (as well as the necessary attention in the event of technical difficulties), it also incorporates the right of people with disabilities who work remotely that the company ensures that the means, equipment and tools, including digital ones, necessary for the development of their activity are universally accessible (art. 11). The following is a brief summary of the structure of the new law:
The condition is maintained that in order to be considered teleworking (for the purposes of application of the law) it must occupy at least 30% of the working day for a period of 3 months. It also defines telecommuting, teleworking and face-to-face work, their limitations (apprenticeship contracts, internships or contracts with minors), as well as the principles of equal treatment and opportunities and non-discrimination, including specific aspects to make these principles effective.
Written contract of the telecommuting agreement
The formal obligations linked to the employment contract are included, recalling the voluntary nature for both parties, the express adoption of a written agreement with a minimum content, the non-affectation of the worker’s employment status, the exercise of reversibility, the agreed nature of modifications to the agreement and the organisation of access priorities. As for the procedures and criteria to be followed by which the person who carries out face-to-face work can switch to remote work or vice versa, as well as in matters of training or promotion, we will have to wait for the result of collective bargaining, as the law refers expressly without entering into its regulation.
Rights linked to teleworking
Companies must adopt the necessary measures to guarantee the right to training, as well as the right to professional promotion, in the same terms as for face-to-face workers.
Provision and maintenance of means and payment and compensation of expenses
The worker has the right to the means, equipment and tools necessary for the development of the activity. Collective bargaining agreements may establish the mechanism for the determination and compensation or payment of these expenses.
Working hours and working time
Working hours may be flexible and there is a right to an appropriate time record. In relation to this point, there are already several rulings in which the company is reminded of its obligation to provide the means and to count as active working time the time in which the teleworker cannot carry out his or her tasks for technical reasons attributable to the company, or for example due to cuts in the electricity supply or Internet connection beyond his or her control (Judgment of the National Court of 10 May 2021).
Prevention of occupational risks
Risk prevention must be carried out on the same terms as for face-to-face workers, although the risk assessment of the workstation will only cover the area set aside for the provision of services.
Use of digital media
The use of telematic means and the monitoring of work performance by automatic devices shall be proportionate and shall adequately guarantee the right to privacy and data protection. Teleworkers also have the right to digital disconnection outside their working hours under the terms established in article 88 of Organic Law 3/2018, of 5 December.
Collective rights of teleworkers
Teleworkers have the same rights of a collective nature as the rest of the workers in the centre to which they are attached.
Company organisation, management and control
Chapter IV includes 3 articles aimed at establishing the obligations of teleworkers regarding data protection and information security, as well as the necessary instructions to protect the company against possible security breaches, compliance with the conditions and instructions for the use and conservation of computer equipment and the powers of company control over their work obligations and duties. With regard to this last point, it should be remembered that the law itself establishes that these control measures must be adopted and applied with due consideration for the dignity of workers, taking into account, where appropriate, their personal circumstances, such as the presence of a disability.
Reforms and amendments
Among other aspects, the additional provisions state that collective bargaining agreements may establish, in accordance with the specific nature of the activity in their field, the identification of jobs and functions that may be carried out by means of remote working. It is also stipulated that this regulation will not apply to public administration employees, who will be governed by their specific regulations.
Competence of the labour authority
The new regulation establishes that the domicile of reference for the purposes of considering the competent labour authority and the applicable public services and programmes for the promotion of employment will be that which appears as such in the employment contract and, failing that, the domicile of the company or of the centre or physical place of work.
Transitional regime and prohibition of compensation
The regulation takes advantage of the Provision that regulates pre-existing situations (Transitional Provision 1ª) to establish that the application of this law may not be used to enforce the compensation, absorption or disappearance of any rights or more beneficial conditions previously enjoyed by persons who provided their services remotely. It is also important to bear in mind that, if worker and company were already applying a teleworking agreement, the new law will be applicable when this agreement expires. In the event that there is no established deadline, the new law must be applied one year after its publication in the BOE (10/07/2022), although the parties may expressly agree that this period be extended to three years after the publication of the regulation in the BOE.