The remote working boom has also led to an increase in the number of cases that reach the courts in connection with teleworking conditions. We analyze some of the controversial subjects on which decisions have already been handed down by the courts.

Remote working can save money both for businesses and employees, but its benefits are particularly visible in connection with striking a work/life balance. However, in the context of such reconciliation, there are aspects related to timetable flexibility and availability which, at times, need to be narrowed down.

Can small domestic or private chores be carried out when working from home? To the extent that this interferes with working hours, it can constitute, inter alia, a neglect of duty, abandonment of post, abuse of trust and a breach of contractual good faith.

This has been held by judgments number 26/2022, of January 24, 2022 and number 436/2022, of July 18, 2022, handed down by the Labor Chamber of the Madrid High Court of, and also by judgment no. 1123/2022, of June 10, 2022 by the Labor Chamber of Castilla-La Mancha High Court, which held that the dismissal of the employee was justified in the case of a worker who, when working from home, during working hours, washed the car, went out to the park to smoke, went to the hairdresser, to do the shopping or carried out cleaning chores close to his home. This conduct involved him disconnecting from work for long periods, which constituted a clear breach of contractual good faith, since it exceeded by far, the flexibility inherent in remote working.

Are employees under a remote working arrangement entitled to the usual rests and breaks, just as if they were working on-site?  The answer is yes, but the workers cannot use the remote working arrangement to take longer breaks without justification.

This has been held by judgment no. 759/2022, of May 9, 2022, by the Labor Chamber of Castilla y León High Court, which found that the artificial extension of breaks constitutes a breach of legislation on rest periods set forth in the applicable collective labor agreement, which constitutes a lack of occupational discipline and is punishable with disciplinary dismissal.

Can employees take confidential information from the office to work remotely from home? The reply varies according to the content of the teleworking agreement signed by the company and the employee and the instructions given in this regard.

In this connection, judgment no. 567/2022, of June 2022, by the Labor Chamber of the Madrid High Court, addressed a case of dismissal of an employee who accidentally left behind several confidential files on a bus, which she had taken from the office for teleworking purposes. The judgment held the dismissal unjustified because no evidence was provided of the existence of a protocol when working from home indicating that it was forbidden to take confidential information from the office. As a result, she could not be attributed with disobedience or contractual good faith.

Can teleworkers unilaterally change the place from which they provide their services remotely? As in the previous case, it depends on the content of the possible remote working agreement and/or the instructions given by the company. Regardless of whether such change in where the services are provided is allowed by the company, it must meet minimum conditions that enable teleworking to be carried out adequately from the standpoint of occupational risk prevention, with optimum results.

In this regard, judgment no. 901/2021, of October 20, 2021, handed down by the Labor Chamber of the Madrid High Court declared that the dismissal of a worker who changed address without the company’s authorization was justified, since connection to the Internet was severely limited at the new address, contrary to the teleworking rules implemented by the company.

This argument was also upheld by judgment no. 3498/2021, of July 1, 2021, by the Labor Chamber of the Cataluña High Court, in a case in which the worker also provided services remotely from the offices of a competing company.

Can disciplinary penalties be imposed in the event of involuntary disconnections? If not, do those disconnections count as effective working time? The answer to the first question is no, as was held in judgment no. 237/2021, of June 15, 2021, by Santander Labor Court no. 4, given that the disconnection was not voluntary. Regarding the second question, the Labor Chamber of the National Appellate Court held in its judgment no. 104/2021, of May 10, 2021, that said interruption counted as time effectively worked because it was up to the employer to provide the teleworker with the adequate means to perform his work remotely, so if those means failed, the failure could only be attributed to the company.

The foregoing notwithstanding, given the progress that has been made (and is being made) in remote working, particular attention will have to be given to the decisions handed down by the courts, given the wide range of scenarios that may arise.

Benigno Maújo

Garrigues Labor and Employment Department