As we all already know, working remotely means the work is performed outside the company’s normal centres and working from home is a sub-section of this system, which involves workers’ rendering their services remotely by using new technologies.

In order to determine a regulatory framework for this system of working, in July 2021, the Spanish Remote Working Act 10/2021 (hereinafter referred to by its initials in Spanish “LTD”) was published in which working remotely and working from home were regulated in depth and a series of obligations and rights were determined for employers and for workers.

The law was presumed necessary because working from home was beginning to be demanded more and more by workers after having become the normal way of rendering their services during the pandemic as a measure to control Covid-19. Moreover, this system enabled the needs for flexibility and safety of both workers and companies to be ensured; it has therefore been extended in many companies until it has now become a common and normal way of organising their work.

However, working from home is voluntary both for the worker and the company and must be duly agreed between both parties. Furthermore, which jobs/duties can be rendered remotely as well as the minimum working hours that the worker must be present in the company can be determined in the individual or collective bargaining agreements that are reached in this respect. Can the company decide on the specific days for working from home and change them for organisational/production reasons? Can the modified working from home days be recuperated?

Furthermore, one of the most important advantages of working from home is lower costs for offices and the cost-saving in the use of transport. However, costs are incurred for electricity, water and fitting out the area/work equipment etc., which have led to disputes arising between workers and employers. Who must pay these expenses?

The National Court provided an answer to these questions in the judgement analysed below.

What happened in this specific case?

The National Court ruled on a class action by virtue of which revocation was petitioned of various clauses in the collective bargaining agreement on working from home that was applied in the company.

Although various clauses in the aforementioned agreement were challenged, I will just focus on two of them, which refer to (i) the possibility for the company to decide on the percentage of time for working from home, the specific days when the worker can benefit from this system and the modification of such days in the event of organisational needs and (ii) the clause related to providing equipment and compensation of the expenses incurred for working from home.

Therefore, the dispute was related to a clause in which the company was granted authorisation to determine the specific days for working from home and was allowed to modify them, with sufficient prior notice, due to organisational needs and it was stipulated it was impossible to recuperate the “lost” working from home days. In addition, the regulation of a clause related to refusing compensation of the expenses incurred due to remotely rendering services.

What was the ruling of the National Court?

Regarding the clause related to the working from home system, the National Court ruled that the fact it is the relevant manager who specifically determines the exact days when the worker must be present in the company does not affect the agreement of intentions, bearing in mind that being present in the company must coincide with the company’s organisational needs.

However, the fact that the days the worker must be present in the company when he/she would normally be working from home, without such working from home day being compensated or replaced by another does indeed imply an infringement of Article 8 of the LTD, since such provision requires that any changes in the conditions stipulated in the remote working agreement must take place by means of reaching an agreement and hence ruled revocation of the last section of the aforementioned clause.

Therefore, companies can choose which days its employees will work from home but if, once agreed, the working from home days are changed for business reasons, the worker cannot be denied the possibility of recuperating such working from home day.

Regarding the clause related to expenses, the National Court referred to the verbatim text of Article 12 of the LTD being clear, employees are entitled to be provided with the equipment required to perform their work along with its maintenance and to compensation and payment of the expenses incurred in order to render their services. The terms in which the worker will be provided with the required equipment, the mechanism for determining this and the compensation or payment of these expenses, but not the refusal thereof, can be regulated in a collective bargaining agreement. Therefore, revocation was ruled since the aforementioned clause clearly infringes the regulations in this respect.

In fact, it is compulsory for companies to pay the expenses incurred for working from home.

Conclusions

The grounds offered by the National Court to rule revocation of the aforementioned clauses have a clear legal basis, i.e. the LTD; hence both companies and workers must apply the provisions therein as far as working from home is concerned.

Moreover, in spite of the possibility to “freely” reach an agreement on numerous issues related to working from home, there are specifically regulated aspects that cannot be infringed by means of these agreements.

Do you have a working from home agreement in your company and would you like it to be reviewed to find out if it is in accordance with the law? Or would you like to apply a new working from home agreement and you need advice on this? Please do not hesitate to contact me because the Labour Department of RSM Spain knows exactly how to ensure that such agreement covers your needs and also complies with the regulations.