Telework: The importance of a good agreement

To avoid possible legal problems surrounding telecommuting or teleworking, it is essential to adopt agreements between companies and employees that adequately regulate this way of working.

That telecommuting is here to stay is a reality that has been highlighted by the current health crisis and the imminent entry into force of Royal Decree-Law 28/2020, of September 22, on telecommuting.

However, although there is already a regulation governing telecommuting, there is still a wide margin for reaching agreements on how it will be developed.

The lack of detail in some of the agreements signed so far has meant that this new form of work is not free of risks for the employer when it wishes to reverse this situation or when the employee’s working day is computed and this results in the accrual of overtime.

The two situations described above have been analyzed by our courts and show the importance of adopting an agreement between the company and the employee that adequately regulates telecommuting.

Thus, the judgment handed down on May 21, 2020 by the Social Chamber of the Madrid High Court of Justice declared the nullity of the dismissal of a worker who was dismissed for disciplinary reasons (for poor performance) after informing the company that if she was forced to reduce her telecommuting working hours (from two days to one day), she would request a reduction in her working hours due to legal guardianship.

It is important to note that the request to reduce the number of remote working days was motivated by the fact that the employee had been assigned to a new work team that required a greater presence.

However, the disciplinary dismissal and its subsequent classification as null and void for violation of the guarantee of indemnity could have been avoided in two ways:

If the telecommuting agreement had regulated the percentage of the working day that the worker had to work in person with respect to the actual working day. Thus, if the worker had reduced her working day due to legal guardianship, the telecommuting time would also have been reduced proportionally.
If it had been agreed that the change of position or work team would make it possible for either of the parties to terminate the telecommuting agreement, a new agreement would have to be signed that would be adapted to the circumstances of the new position.
On the other hand, the judgment issued on February 3, 2016 by the Social Chamber of the High Court of Justice of Castilla y León (Valladolid) declared the obligation of the company to pay the overtime performed by the employee through telecommuting.

The court’s argument to condemn the company to pay overtime was that, although the worker provided services at home, it was up to the company to establish the necessary guidelines on working time to ensure compliance with the limits of working hours and rest periods. Thus, the company cannot rely on the fact that the home is a space protected by the right to privacy in order not to control what the worker does at home.

In this case, moreover, it is the ruling itself that gives us the solution as to how to limit overtime during remote work, stating that “only if the company has established clear guidelines on working time that respect the legal and conventional regulations on working hours and breaks and if it also establishes, in agreement with the worker, instruments for declaring and controlling overtime during remote work, instruments of declaration and control of working time at a distance or at home, it would be possible to admit that a worker’s conduct at home in violation of these guidelines and omitting the company’s control instruments could give rise to an exception to the payment of the corresponding hours and their computation as working time”.

In conclusion, an exhaustive and adequate telecommuting agreement is essential to mitigate the risks derived from this new form of work, which can undoubtedly benefit both companies and workers.