The BOE of 23 September 2020 publishes Real Decreto-Ley 28/2020 on Distance Work, applicable to labour relations for third parties.
In the following lines, we would like to offer our clients, in a synthetic way, the most outstanding aspects of the new regulation of this productive modality which, at present, and as a consequence of the pandemic, is used by 37% of Spanish workers.
The RDL distinguishes between “distance work” and “teleworking”, the latter being the distance work carried out predominantly by computer means and systems and the one that, foreseeably, will be the majority modality in the near future.
(A) TELEWORK DAYS
Distance working will be considered regular if it reaches at least 30% of the working day or the equivalent proportional percentage depending on the duration of the employment contract, within a reference period of three months.
In other words, in a five-day week and 37.5 working hours at least 1.5 days must be worked remotely in order to be considered by the new law.
(B) AGREEMENT BETWEEN COMPANY AND WORKER
The company is obliged to sign an individual agreement with a “compulsory minimum content” with each worker who is going to telework, and if he or she is already teleworking, the agreement must be signed within three (3) months of the RDL coming into force, that is, from 13 October 2020.
The minimum content of the agreement must include:
- Inventory of the means, equipment and tools required for the development of the agreed distance work, including consumables and furniture, as well as the useful life or maximum period for its renewal.
- List of the expenses that the worker may have due to the fact of providing distance services, as well as the way of quantifying the compensation that the company must obligatorily pay and the time and way to carry it out, which will correspond, if it exists, to the provision included in the applicable collective agreement or arrangement.
- Work schedule of the worker and, if applicable, rules of availability.
- Percentage and distribution between face-to-face and distance work.
- Work centre where the worker shall perform the face-to-face work.
- Distance work place chosen by the worker.
- Duration of notice periods for exercising reversibility situations, where applicable.
- Means of business control of the activity.
- Procedure to be followed in the event of technical difficulties that prevent the normal development of distance work.
- Instructions issued by the company, with the participation of the legal representation of the workers, regarding the protection of data applicable to distance work.
- Instructions issued by the company, with the participation of the workers’ legal representation, on information security applicable to distance work.
- Duration of the distance working agreement.
(C) COSTS OF TELEWORKING
People who telework will have the right to be provided and adequately maintained by the company with all the means, equipment and tools necessary for the development of the activity. Likewise, precise attention will be guaranteed in the event of technical difficulties, especially in the case of teleworking.
The development of distance work must be paid for or compensated by the company, and may not involve the worker assuming the costs related to the equipment, tools and means linked to the development of their work activity.
(D) EXCEPTIONAL CIRCUMSTANCES DUE TO COVID-19
Distance work that was exceptionally implemented as a consequence of the health containment measures derived from COVID-19, and as long as these are maintained, ordinary labour regulations will continue to apply.
(E) EQUALITY OF RIGHTS
Workers may not be privileged or discriminated against in any way in their working conditions – essentially remuneration, job stability, working time, training and professional promotion – on the grounds that their work is face-to-face or at a distance.
People who telework shall be paid at least the salary that corresponds to them by professional category or activity, including remuneration for company profits.
The equality criterion will also be applied “in matters of reconciliation and co-responsibility, including the right to adapt to the working day”.
(F) VOLUNTARINESS AND REVERSIBILITY
Distance work will be voluntary and reversible.
Neither the company can force an employee to telework, nor can the worker demand teleworking, so it must be voluntary and mutually agreed by the parties.
It may not be a cause for dismissal or substantial modification of working conditions (a) by refusing to telework or (b) by failing to adapt to telework or being unsuitable for it.
(G) GUARANTEES OF TELEWORKING
The rule provides for time flexibility. Employers and employees can negotiate compulsory availability times.
In any case, the company must keep a record of the working day so that it accurately reflects the working day.
People who telework will have the right to digital switch-off outside working hours. The business duty to guarantee disconnection entails a limitation on the use of technological means of business communication and work during rest periods, as well as respect for the maximum length of the working day.
To this end, the agreement between the company and the worker must specifically indicate the worker’s availability bands
(H) CORPORATE CONTROL
The standard establishes measures for the control of the worker by the company.
he company may adopt the measures it deems most appropriate for monitoring and control to verify compliance by the worker with his or her obligations and duties at work, including the use of telematic means, taking into account in their adoption and application the consideration due to his or her dignity and taking into account, where appropriate, the real capacity of the workers with disabilities.