Law 10/2021, of 9th July, on remote working, which entered into force on 11th July 2021 (hereinafter referred to as the “Law”), regulates the formalisation of remote working agreements.
With this in mind, in the following we offer a general overview of when a remote working agreement must be entered into, what must be included in the agreement and what procedures must be followed once such an agreement has been entered into.
I.- Definition of “Remote working”
The Law defines “Remote working” as a form of organising work or carrying out labour activities which are performed in the home of the employee or in the place elected by the latter for this purpose, for the employee’s entire working day or for a part thereof, on a regular basis.
Remote work is deemed to be regular when a minimum of thirty percent of the working day, or the equivalent proportional percentage depending on the duration of the employment contract is performed in a reference period of three months.
For example, if an employee works five days a week, eight hours a day, but only works remotely on one day of the week, this is equivalent to just 20% of total working hours and is not considered to be “regular”. Therefore, this remote working is not subject to the regulation presented below.
II.- Characteristics of the remote working agreement
Remote working requires entering into a remote working agreement as regulated in the Law, before starting to work remotely. This agreement must be carried out in writing and may form part of the initial contract or be formalised at a later date.
Remote working is voluntary for the employee and for the employer. Neither party can to be forced to change to this modality, even if one of the parties wishes to do so.
The decision to work remotely from an on-site working arrangement is reversible for the company and for the employee.
III.- Contents of the remote working agreement
The agreement must include the following:
- Inventory of the means, equipment and tools required for engaging in the agreed upon remote work;
- List of the expenses that the employee may have to meet due to rendering services on a remote basis, as well as the form of quantifying the compensation which the company must pay to the employee and the time and form of such payment;
- Working hours of the employee and where appropriate, rules on availability;
- Percentage and distribution between on-site and remote working, where applicable;
- Advance notice required for reversing the working modality, if any;
- Method of control of the labour activity on the part of the company;
- Procedures to be followed in the event of experiencing technical difficulties which impede the normal performance of the remote work;
- Duration of the remote working agreement.
IV.- Procedures after entering into the agreement
The company must hand over a copy of all remote working agreements to the legal representation of the employees within a term of no more than ten days as from the formalisation of the agreement, which will be signed as proof that it has been handed over.
Subsequently, said copy must be sent to the employment office. When employees have no legal representation, a basic copy will likewise be formalised and sent to the employment office.
V.- Collective agreement
Collective agreements may establish labour conditions with regard to remote working, including the definition of “regular”.
Therefore, when considering the possibility of remote working, it is important to know which is the collective agreement applicable to the company and it is recommendable to consult a specialist in this area.
Satoshi Minami
Vilá Abogados
For more information, please contact:
28th July 2023
