New legal regulations for the home office in Spain

On 23 September 2020, the Spanish Official Bulletin, BOE published the Royal Legislative Decree 28/2020 of 22 September 2020 regulating “homeoffice”, which entered into force 20 days after its publication. It should be noted that for the existing and in practice homeoffice, the law provides a period of 3 months to formalise the agreement or adapt the existing agreement (except where it results from collective negotiation).

This new Royal Decree puts an end to the existing irregularity in Spain, where we had more than 3 million people doing homeoffice during Covid-19, by taking up several aspects such as the limits of homeoffice, time flexibility, who has to bear the costs and which workers can benefit from homeoffice, thus updating the outdated Article 13 of the Workers’ Statute (Estatuto de los Trabajadores).

1. The definition of “homeoffice”

The definition given to the concept of homeoffice is particularly valuable, since only when working from home is involved should the provisions of the law be complied with. Thus, the law defines homeoffice as the form of work organization or the performance of work activity that is carried out in the worker’s home or in the place chosen by him/her, during all or part of his/her working day, on a regular basis. It is understood that there is regularity when in a reference period of 3 months a minimum of 30% of the working day is carried out in this format (or the equivalent proportional % depending on the duration of the contract). That means that in a basic contract of 40 hours and five days a week, it would be equivalent to 1 DAY AND A HALF. This implies that the company can offer “homeoffice” 1 day a week WITHOUT having to comply with the rest of the obligations set out in the law. Furthermore, the concept of homeoffice implies the exclusive or prevalent use of computer, telematic and telecommunication devices and systems.

With regard to minors under the age of 18 and for work experience and training and apprenticeship contracts, it is envisaged that a homeoffice agreement will only be possible if at least 50% of the work is guaranteed to be provided in person at office.

2. Characteristics of the homeoffice agreement. –

• Voluntary nature of the rule: the worker cannot impose homeoffice, nor can the employer. It cannot therefore be imposed by a substantial change in working conditions, without prejudice to the right to do homeoffice that may be recognized by law or by collective negotiation.
• Homeoffice is reversible for both parties and requires the signing of an express written agreement, which has a minimum content that can be extended through collective negotiation. A basic copy of the agreement must be given to the workers’ legal representative within 10 days of signature and sent to the employment office.

Without prejudice to the provisions of collective agreements or arrangements, the minimum compulsory content of the homeoffice agreement must include the following matters:

– Inventory of tools, equipment, and device for the development of work, consumables and movable elements, and the maximum period for their renewal.

– Listing of the expenses that the worker may have due to the fact of providing services at a distance, as well as the form of quantification of the compensation that the company must obligatorily pay and the time and form for carrying it out, which shall correspond, if it exists, to the provision contained in the applicable collective agreement or arrangement.

– Work schedule of the worker (beginning and end of the working day) and rules of availability.

– Percentage and distribution, where applicable, of homeoffice and presence work.

– Work centre to which the worker’s homeoffice will be assigned.

– Distance work centre chosen by the worker to carry out his/her work.

– Duration of notice periods for the exercise of reversibility situations, where applicable.

– Means of business control of the activity.

– Procedure to be followed in the event of technical difficulties.

– Specifically, applicable instructions for data protection and information security, with the participation of workers’ representatives.

– Duration of the agreement for the provision of services at a distance.

– The sections of activity and the time for activating and deactivating equipment.

Any modification must also be agreed in writing and the legal representation will be informed of it. This agreement can be signed at the same time as the employment relationship begins or at a later time, but always before the start of the homeoffice.

• The refusal of the worker to do homeoffice and/or to exercise his or her right to the reversibility of the work in person shall not be cause for dismissal.
• Failure to formalize this written agreement in the terms and with the legal requirements is considered a serious infringement (punishable by a fine of 626 to 6,250 Euros).

Workers who work 100% of their working day from the beginning of their employment relationship by remote means have priority access to positions that can be carried out totally or partially in person, for which the company must inform them of the vacancies. The agreement governing the employment relationship will stipulate the right to digital disconnection.

• The Royal Decree-Law guarantees equal treatment and non-discrimination in this form of work with respect to on-site workers.
• The company must provide the worker with all the means necessary to carry out his or her duties (an inventory must be established in the homeoffice agreement). The homeoffice agreement shall include the enumeration of expenses, the quantification of compensation and the time and manner of its realization, which shall correspond, if any, to the provisions of collective negotiation.
• Flexible working hours, but always in accordance with the homeoffice agreement and the provisions of collective negotiation. The time record also applies to them and should include the start and end of the working day, as well as the periods of activity.
• As a way of protecting the privacy and personal data of workers, the law avoids the company from requiring them to install software or applications on their own devices and use them for their work.
• The company must guarantee compliance with occupational risk prevention regulations and consider the peculiarities of this form of organisation when planning its preventive activity. It must exclusively assess the area set aside by the homeoffice for the performance of his or her job (whether at home or elsewhere); if, in order to obtain the necessary information, it is essential to visit that place, a justificatory report must be issued and given to the prevention delegates and to the worker himself or herself. In any case, the worker’s permission will be required for such a visit if it is his or her home or that of a third party. If this permit is not granted, the preventive activity may be carried out by the company on the basis of the determination of the risks resulting from a self-assessment to be completed by the worker, carried out in accordance with the instructions of the prevention service.
• The right to exercise the worker’s collective rights while homeoffice is recognised

Distance work derived from COVID-19:

When homeoffice is applied as a consequence of the measure contained in article 5 of Royal Decree Law 8/2020 of 17^TH March or as a consequence of the health containment measures derived from the COVID-19, and during the validity of the same, this Royal Decree Law will not be applicable, but companies will be obliged to provide the means, equipment, tools and consumables that are necessary and to maintain them, with collective bargaining being able to establish the forms of compensation for the expenses that this form of work implies for the worker, if they exist and have not already been compensated.

Other issues of interest in relation to homeoffice:

• With regard to homeoffice relationships in force and which were regulated, prior to the publication of the law, by agreements or collective negotiation on conditions for the provision of homeoffice, the law shall be applicable from the moment that these lose their validity. If such agreements or contracts are in force for an indefinite period, the law will be applicable one year after their publication in the BOE, unless the parties signing them expressly agree to a longer period, which may be up to three years.
• In the area of promotion and professional training, employees who regularly study to obtain an academic or professional qualification are recognised as having the right to access homeoffice, if this is the regime established in the company and their position/functions are compatible with this form of work.
• The right of the victims of gender violence or terrorism to make effective their protection or their right to integral social assistance, to carry out their work totally or partially as homeoffice or to stop doing so, provided that this form of service is compatible with their position/functions, is recognised.
• A special and urgent judicial procedure is created for complaints related to access, reversal, and modification of homeoffice.

Dr. Frühbeck Abogados is at your disposal and offers you all the support and legal advice you need to regulate homeoffice with your employees.

The author of this article is Elena Bello from Dr. Frühbeck Abogados.