It has been almost a year since the publication of the Spanish Working from Home Act 10 of 9 July 2021 (with initials in Spanish “LTD”), and on 22 March the Spanish National Court ruled for the first time on the matters to be taken into consideration by companies when it comes to regulating the practice of working from home.
In an attempt to shed some clarity on the interpretation of the provisions of Act 10/2021, the National Court has ruled on a collective dispute filed by several trade unions requesting that the clauses of the working from home agreements (WHA) signed between the company and some of its workers be ruled null and void, in some cases fully and in others partially.
The National Court has declared several of the clauses imposed by the company to be null and void due to being unfair and, given the importance that WHAs could have for the companies that implement them as required by law (30% on a quarterly basis), it is worth knowing what the Courts do and do not seem to allow.
What expenses have to be paid to home workers when there is no relevant provision in the collective bargaining agreement?
The LTD stipulates that the costs of working from home must be borne by the company. This cannot involve the employee bearing any costs related to equipment, tools, resources, etc. The amount of such compensation is, however, subject to the provisions of collective bargaining agreements.
Many collective bargaining agreements have started to regulate this issue, but in many cases, they do not include any provisions on this issue (which is common in all agreements negotiated before the law was passed). What happens in such cases? Do I have to pay anything?
In the aforementioned judgement, the National Court points out that the obligation to pay expenses or to compensate for the expenses incurred is a right of the worker that is not conditional on the existence of regulation by a collective bargaining agreement and, therefore, the company will have to pay expenses.
In addition, with this ruling, the National Court reminds companies that they are responsible for providing workers with all the resources, equipment and tools required to carry out their work, and that it is not acceptable for workers to provide their own personal resources.
Can employers impose limits on digital disconnection?
Another issue addressed in the ruling is digital disconnection. This is another right of workers, not only provided for in the LTD, but also in Article 88 of the Spanish Act on data protection and guarantee of digital rights (with initials in Spanish LOPDGDD).
In this specific case, while recognising the right to disconnection, the clause of the WHA in question stipulated that the employee had to respond to emergency calls or emails that could be detrimental to the business and required immediate attention.
While the Court acknowledged that the right to digital disconnection is not absolute, it found that the wording of the WHA was too broad and, therefore, unfair. It therefore declared it null and void and determined, as a general rule, that each situation must be dealt with on a case-by-case basis.
Does the risk assessment have to be done from the home worker’s home?
Another of the most frequently asked questions this year has been how to carry out an occupational risk assessment in cases of working from home. This issue was also contested because the WHA under discussion in the proceedings stipulated that “when required by the circumstances, in accordance with the provisions of Article 16(2) of Act 10/2021, the worker authorises the Company’s Risk Prevention Department to enter his or her home from time to time”.
In this case, the judgement considered that since there was a conflict between the duty of prevention and the right to privacy of the home, it was not appropriate to impose blanket authorisations to enter the residence from where services are provided.
The National Court clarified that, in order to be able to enter the worker’s home, there must be specific reasons to do so, and a specific report must be issued to the affected person and to the prevention delegates. This does not prevent the employee from refusing in any case.
Can we revoke the working from home authorisation at any time?
Lastly, the judgement helps to clarify one of the most important issues addressed by the LTD: the right of reversibility, i.e. the right of employers and employees to decide to return to face-to-face work by discontinuing working from home.
However, the WHA at issue sought to limit this right by setting out the circumstances in which workers could exercise it.
The Court makes it clear that this right cannot be limited by the WHA beyond the provisions of the collective bargaining agreement. It also clarified that unlike the company’s rights, the workers’ rights cannot be limited, and there must in any case be a balance between the two.
This implies almost an absolute right to return to face-to-face work and any requirement, time limit or element that could hinder this should be viewed in a very restrictive way, although, as clarified in the judgement, limitations can be placed on the company’s right of reversibility.
And what are the conclusions?
The ruling is a first warning sign for companies using WHAs to set up a company-specific working from home system. It is a call for compliance with the law and respect for the rights it establishes.
Above all, however, it calls for the drafting of well-crafted WHAs, with strong legal advice, which is why guidance in this area is always highly recommended.
Staying up to date and knowing how the courts interpret this regulation can avoid many problems in the future.
That is why RSM is here to help you to avoid any concerns when entering into a working from home agreement.
Author: Yolanda Tejera, Labour lawyer at RSM Spain