Co-funded by the European Union

Spain adopted a new legislation on remote working

  • The legislation on remote working was finalised and adopted by Royal Decree-Law 28/2020 on 22 September 2020.
  • While at the outset the Government did not involve the social partners in the development of the draft text, trade unions and employers’ organisations were finally able to negotiate and agree on the main elements of the law.

The legislation requires employers and employees to sign an agreement for remote working when this is the working form for more than 30% of the week within a period of three months. The employer is also obliged to pay the expenses the employee may have to face for equipment and tools needed to perform his work (further details may be foreseen by collective agreements) (article 11 and 12). Health and safety is also a priority to be taken care of by the employers during remote working, especially the «psychosocial, ergonomic and organizational» factors.

Remote working is voluntary and may be changed during the course of the employment contract, upon signature of a specific agreement (article 5).

Article 18 of the Decree-Law introduces a right to disconnect: “the business duty to guarantee disconnection entails a limitation of the use of technological means of business and work communication during rest periods, as well as respect for the maximum duration of the working day and any limits and precautions in terms of working hours provided for in the regulation or agreement applicable.

The company, after hearing the legal representation of the workers, will develop an internal policy aimed at workers, including those who occupy managerial positions, in which they will define the modalities of exercise of the right to disconnection and training actions and to sensitize staff on a reasonable use of technological tools to avoid the risk of computer fatigue”.

Article 22 is also relevant as it refers to the employers’ supervision, by stating that “the company may adopt the measures it deems most appropriate of surveillance and control to verify compliance by the worker with the work obligations and duties, including the use of telematic means, by having due consideration to their dignity and taking into account, where appropriate, the real capacity of workers with disabilities”.

The Confederación Española de Organizaciones Empresariales (CEOE) considers the new text to be balanced and to properly respond to the regulatory needs of this form of work.

Social partners managed to achieve these results after three months of discussions and negotiations that radically changed some elements of the original draft law. Thus, some criticism highlighted by the CEOE President, Antonio Garamendi, were overcame through social dialogue.

For instance, initially the draft did not conceive remote working as a matter of work organisation and excluded the employer from playing a role in it. Therefore, in the previous text the workers were free to decide whether to work remotely or not, when to return to the office and on his working time flexibility, thus undermined the capacity of direction and control of the employer.   

Moreover, the initial text regulated exhaustively issues that, in general, should be left to collective or individual autonomy. The current text strengthens collective bargaining and individual agreement, where appropriate.

It can establish:

  • The mechanisms and criteria for reversibility and preferences for it, linked, among others, to training, promotion and stability in the employment of people with disabilities, multi-employment or multi-activity and personal or family circumstances.
  • The provision and maintenance of means, equipment and tools.
  • The compensation of expenses linked to the development of distance work.
  • Flexibility in working hours and the time recording system.
  • The terms for the use for personal reasons of the computer equipment made available by the company.
  • The means and measures to guarantee the effective exercise of the right to disconnection and collective rights, as well as the extraordinary circumstances for the modulation of the right to disconnection.
  • The identification of the jobs and functions susceptible to remote work.
  • The conditions of access and development of distance working activity.
  • The maximum duration of distance working.
  • A minimum working day at the office.
  • The exercise to switch from telework (reversibility).
  • A percentage of the working day less than 30% for distance work.