To avoid possible legal problems relating to working remotely or teleworking, it is essential for an agreement to be reached between the company and worker that suitably regulates this form of working.

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

However, although there already exists legislation that regulates teleworking, there is still a broad margin to reach agreements that determine how it should take place.

The lack of detail in certain agreements signed to date has resulted in this new form of working being subject to certain risks for employers when the situation has to be reversed or when calculating the hours worked by employees and the accrual of overtime.

These two situations have been analyzed by our courts of appeal, which highlight the importance of an agreement between the company and the worker that suitably regulates teleworking.

In this regard, the judgment of May 21, 2020 by the Labor Chamber of the High Court of Madrid declared the dismissal of a worker on disciplinary grounds (for poor performance) as null and void, after notifying the company that if the obligation to reduce teleworking hours was imposed (from two days to one), she would apply for a reduction of working hours for legal guardianship.

It is important to point out that the application for the reduction of teleworking hours had been the result of the worker being assigned to a new team, which required more presence.

However, the disciplinary dismissal and its subsequent annulment due to a breach of the guarantee of indemnity could have been avoided in two ways:

  1. If the teleworking agreement had regulated the percentage of the effective working hours that the employee was required to work on site. In this way, if the worker had reduced her working hours for legal guardianship, it would also have reduced the teleworking hours proportionately.
  2. If it had been agreed that the change of position or work team would enable either party to cancel the teleworking agreement and enter into a new agreement that was adapted to the circumstances of the new position.

Furthermore, the judgment of February 3, 2016 by the Labor Chamber of the High Court of Justice of Castilla y León (Valladolid) declared the obligation of the company to pay the overtime worked by an employee remotely.

The Court ruled to order the company to pay the overtime given that, although the worker provided services at home, it was the company’s responsibility to establish the necessary guidelines on teleworking in order to guarantee compliance with maximum working hours and rest periods. In this case, the company could not justify its decision on the fact that the worker’s home is protected by the right to privacy and that it was therefore unable to control what the worker was doing.

It is also the judgment itself that provides the solution on how to limit overtime in teleworking situations, by pointing out that “only if the company has established clear guidelines on working hours that comply with legal and collective bargaining agreement regulations on working hours and rest periods and establishes, through an agreement with the worker, instruments to record and control hours worked remotely or at home, could it be possible to admit that the worker’s conduct inside his/her home in breach of such guidelines and preventing the company’s instrument of control may result in non-payment of the relevant hours and their non-inclusion as working time”.

In conclusion, a comprehensive and suitable teleworking agreement is essential to limit the risks resulting from this new form of work and will undoubtedly benefit both companies and workers.

Nazaret Babio

Garrigues Employment & Labor Law Department