Teleworking: main issues

Due to the Covid-19 health crisis, teleworking has increased from approximately 8% to 34% during the pandemic. The main purpose of this organization is to optimize the relationship between work time and personal and family life. However, its extension raises a number of issues that will have to be developed in the near future.

Current regulation
The current regulation of telework is scarce. At the European level it is regulated in the European Framework Agreement on Telework of July 16, 2002, revised in 2009, which is a standard that introduces a series of recommendations without legally binding character.

In Spain, it is only included in art. 13 of the Labor Code, which specifies that remote workers shall have the same rights as those who work at the company’s work center and that the employer must establish the necessary means to ensure effective access of these workers to professional training for employment, in order to favor their professional promotion. It also states that they are entitled to adequate health and safety protection.

Teleworking is voluntary for both the employee and the employer, and may be part of an initial job description or may be agreed voluntarily at a later date. The decision to switch to teleworking is reversible at the request of the worker or the employer, and the modalities of this reversion must be established by individual or collective agreement.

Pablo Jaquete Lomba understands that “teleworking must be accepted voluntarily by the worker”. The company, therefore, can not impose teleworking or through a procedure of substantial modification of working conditions, nor collective bargaining.

Recently the Government has announced its regulation, including the compensation of equipment, electricity and office expenses that the employee who teleworks may have. The bill will also include working hours and rest time.

Digital disconnection
The right to digital disconnection, which is applicable to cases in which the activity is carried out remotely, is included in art. 88 LO 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights, should enhance the right to the reconciliation of work and personal and family life and be subject to the provisions of collective bargaining or, failing that, to what is agreed between the company and the workers’ representatives. As Alvaro Perea points out in his article “telework and digital disconnection: an expectation that must become reality” implies “the right of every worker or public official to obtain respect for their rest time, with the correlative attention to their personal and family privacy”.

Thus, the overlapping of work activities in the domestic environment can cause dysfunctions in the context of the professional relationship, given the confusion of times and spaces that do not offer all the necessary clarity in the separation of the moments of work and rest.

Time registration

The organization of working time in teleworking is subject to the general regime. According to the Guide on the Registration of the Working Day, prepared by the Ministry of Labor, Migration and Social Security, the obligation to register is compatible with the flexible working hours that often characterizes this type of work, so that the daily working day can be varied (higher daily working days compensated with other lower ones, for example), whose computation for the purpose of determining the working time actually performed by the worker requires periods or sequences of time longer than one day. Thus, the daily record of the working day must be weighted and globalized for the purposes of controlling and accounting the effective working time in such sequences longer than the daily one.

For more information on time recording and teleworking in times of pandemic, see the article on key issues in time recording with teleworking due to the Covid-19 crisis.

Differences with Smart working
Teleworking, a priori, is based only on the change of location, complying with the same working hours. In smart working, on the other hand, the worker self-manages his time, and is not subject to any kind of schedule, but can freely choose the hours of the day when he wants to work, as long as he meets the objectives.

Smart working is based on trust, on the employee being clear about his or her objectives, measuring performance rather than hours worked. In addition, there must be a “perfect” coordination between the company and the worker, with an effort on the part of both to make it possible to develop the activity remotely.