On 23 September 2020, the Spanish Official State Journal (Boletín Oficial del Estado) published Royal Decree-law 28/2020, of 22 September (“RDL 28/2020”), on remote work. The new regulation will enter into effect 20 days after its publication, in all matters relating to the regulation of this form of work.
As pointed out in the new regulation’s Stated Purpose, it aims to offer a legal framework that provides certainty and guarantees for the performance of work from home or remotely. Although it is a pre-existing form of work, remote working has lacked almost any form of regulation to date. However, remote work has increased considerably as a result of the current medical crisis and it is foreseeable that, when the pandemic ultimately ends, it will be used much more extensively by employers and will be increasingly requested by employees.
The aim of the new regulation is, on the one hand, to help balance the use of this kind of work and the opportunities and benefits that it may generate for both employers and employees and, on the other, to establish a set of rights as to the voluntary and reversible nature of remote working, the principle of equal professional conditions at work, especially remuneration including expenses, professional training and promotion, collective rights, maximum working hours and minimum rest periods, the flexible distribution of working time and health and safety.
The most significant aspects of the RDL 28/2020 in respect of remote work are:
Concept, scope of application and time periods
Remote work is the regular organisation of work or the performance of employment from the employee’s home or wherever the employee has chosen to perform it, throughout all or part of the working day.
However, for the provisions of RDL 28/2020 to apply, it is necessary that the remote work be rendered, within a reference period of three months, for at least 30% of an employee’s working day or an equivalent proportional percentage on the basis of the term of the employee’s employment contract.
Remote work is voluntary, without prejudice to the provisions of applicable legislation or collective bargaining agreements, and reversible both for the company and for the employee on the terms established by applicable collective bargaining agreements or, otherwise, in the remote work contract that is executed.
It is important to point out that normal employment legislation will continue to apply to remote work implemented exceptionally as a result of Royal Decree-law 8/2020, of 17 March, or as a result of the medical measures connected to COVID-19. However, companies have an obligation to provide the resources, equipment and consumables necessary to perform work remotely, as well to maintain them. The new regulations also establish that collective agreements must establish processes for compensating any expenses incurred, if any, that have not already been compensated.
As for pre-existing remote work agreements or collective bargaining arrangements that did not establish a duration, RDL 28/2020 will apply to them once one year has elapsed from the date on which it was published in the Official State Journal, unless the parties agree to extend the term of the agreement, which they may do up to a maximum of three years.
Contracts with minors or apprenticeship contracts
At least 50% of the services rendered must be on-site, although theory learning may be conducted online in the case of apprenticeship contracts.
Remote work contracts
Remote working must be formalised in a written agreemen t and must have certain minimum contents, without prejudice to general employment legislation.
In general, a remote work contract must contain: i) an inventory of the resources, equipment and tools required to perform the work, ii) potential expenses and how compensation payable by the company to the employee is quantified, iii) working hours and availability rules, iv) percentage and distribution between on-site and remote work, v) the workplace the employee is linked to, vi) the place where remote work will be performed, vii) notice periods for the purpose of resuming on-site work, viii) employers’ means of monitoring work, ix) the procedure to be followed if technical issues are encountered that prevent normal work, x) instructions on information security, xi) data protection, and xii) term of the agreement .
A copy of each contract must be provided within 10 days to the legal representatives of the workers and sent to the employment office.
The agreement must be formalised within three months from the date on which RDL 28/2020 applies to the employment relationship.
Changes to the terms and conditions of the agreement requires the consent of the employer and the employee, must be formalised in writing and notified to the workers’ legal representatives. Modifications to pre-existing individual contracts that are not as a result of the provisions established in a collective bargaining agreement should be made within three months from the date on which RDL 28/2020 applies to the employment relationship.
Rights of employees performing remote work
They have the same rights as employees not working remotely, except for those rights inherent to workplace on-site work. These include remuneration, employment conditions, discrimination and work-life balance, among others.
Rights connected specifically to remote work, including: the right to payment and compensation for expenses on equipment, tools and resources linked to the performance of the work, right to a suitable work-time log, right to privacy and data protection, right to digital disconnection, right to flexible times to render services on the terms established in the remote work contract, rights inherent to the application of health and safety regulations and collective bargaining and a right to legal representation.
The key role of collective bargaining
RDL 28/2020 confers broad powers on collective bargaining to regulate remote work. Collective bargaining agreements are able to define the activities that can be performed remotely, the term and the conditions of the remote work, the minimum time that must be spent at the workplace, return to work at the workplace and other aspects requiring specific provisions.
Employers’ monitoring and organisational powers
The new regulation establishes monitoring and organisational powers for employers to ensure that remote employees fulfil their employment duties and obligations, that they use computer systems properly and to ensure greater information security and data protection.
Among other provisions, RDL 28/2020 extends the MECUIDA Plan, which remains in force until 31 January 2021, as well as some Social Security measures with the aim of making it easier for people to access the official minimum wage.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021