Back again with teleworking clauses. Which of these are valid for our Courts?

Back again with teleworking clauses. Which of these are valid for our Courts?

After almost more than a year since the entry into force of the Law 10/2021 of 9 July on teleworking (“Telework Law” or “TWL”), our courts have been in charge of explaining, through the analysis of several factual scenarios, the applicability of this Law.

First of all, let us start from an uncontroversial fact, as the judgments would say, teleworkin can only take place when there is an agreement between both parties, company and worker, for the worker to provide remote services, that is, this modality of service provision cannot be imposed by way of substantial modification of working conditions.

The provision of services in the form of teleworking, if it exceeds 30% of an employee’s working time on a quarterly basis, must be formalised, in writing, by means of a teleworking agreement (“TWA”), which must comply, in terms of its minimum content, with the requirements of Article 7 of the TWL.

The analysis of the clauses of these agreements and, above all, their compliance with the law is not a simple matter, and since the entry into force of the aforementioned TWL, the Courts have analysed numerous agreements to study the legality of some of their clauses, reaching, among others, the following conclusions: 

The telework agreement as a contract of adhesion.

In the Judgment of 22 March 2022, the National Audience (“NA”) studies a case in which the total nullity is sought in some cases, partial in others, of the clauses established in teleworking agreements signed between a company and several of its employees, as if it were a contract of adhesion. 

The Judgment, although does not declare the total nullity of the TWA, since its content was agreed with both the WLR (Worker Legal Representation) and the signatory workers, it does declare the nullity of several of its clauses, clarifying that companies cannot use the TWA to configure, through the subscription of adhesion contracts, a tailor-made telework. 

It should be noted that in this case there was no regulation on teleworking in the applicable Collective Bargaining Agreement.

Determination of teleworking time.

In this matter, and taking into account the voluntary nature of this type of work contract, it is obvious that the determination of working time cannot be linked to the decision of one of the parties, as was made clear in the Judgment of the National Audience of 12 September 2022.

In this case, the decision on the determination of teleworking time was subject to the needs of the department and the instructions of the hierarchical superior, this being totally contrary to the provisions of Art. 8 of the TWL, in addition to the fact that the lack of specification as to the percentage or distribution of this time is contrary to the necessary content as established in Art. 7, and therefore the clause was declared null and void.

In a similar matter, the National Audience of Justice ruled on 10 November 2022, which analysed a clause in which it was indicated that teleworking would take place on three days, with two days to be spent at the work centre, with the distribution of the latter days being the responsibility of the hierarchical manager.

On this occasion, the clause establishes the days of teleworking and on-site attendance that the worker will enjoy, which is lawful despite the lack of specification of the specific days, since the on-site attendance is linked to the organisational needs of the company, especially when there may be an unforeseeable event that generates such a need.

Notwithstanding the above, the judgment does consider the company’s actions to be null and void in regards the impossibility of compensating for teleworking days unused when the worker was required by the company to attend the workplace.

Necessary devices for the provision of remote services.

According to the provisions of Article 11 of the TWL, companies are obliged to make available to the worker the necessary means for the provision of services.

In this sense, the aforementioned Judgment of 22 March 2022 shows that the clause whereby the worker had to provide the company with his personal e-mail address and telephone number is null and void, despite the company’s justification that it needed this information in order to have contact with the worker. 

Finally, the Judgment considers it lawful that the worker is given responsibility for the equipment and its maintenance, and must comply at all times with the instructions for its use, and the company may even, by virtue of the provisions of article 21 of the TWL, charge the costs of repairing these tools when they are misused by the worker.

Compensation of expenses

Article 12 of the LTD stipulates that companies must bear or compensate the costs of teleworking, and at no time may these costs be borne by the worker.

The Judgment of 22 March 2022 declares the a clause as null and void due to its abusive nature given that, for the establishment of the compensation of expenses, the TWA referred to the provisions of the referral to the Sectoral Agreement (“SA”) and the latter did not say anything. The NA declares that, regarding the compensation of expenses, that the reference to a SA, which does not say anything, is not a justification for avoiding payment.

On the other hand, the Judgment of 10 November 2022 states that the clause stating that there is no compensation for expenses is not valid either, since these expenses are compensated by the savings that the lack of travel to the workplace represents for the workers.

Reversibility

The NA ruling of 22 March 2022 states that in cases where the teleworking agreement is formalised as if it were a contract of adhesion, the clause whereby the employer stipulates the causes that will allow the worker to exercise contractual reversibility is null and void, although it is legitimate for the employer to state the cases in which the he can exercise this right.

Similarly, the Judgment of 12 September 2022 studies a clause on this matter in two respects:

Firstly, that it is lawful for the period of notice to revert the TWA to be different for the company and the worker, as this respects art. 5.3 of the TWL, unless an abuse of right is observed. 

However, it declared null and void the clause whereby the company reserved the possibility of analysing and, if necessary, rejecting the worker’s request for reversibility, on the understanding that the worker’s voluntary decision was conditioned by the company, contrary to the provisions of art. 1256 of the Civil Code.

Self-assessment of occupational risks and monitoring and control.

Finally, the company, despite the fact that the services are not provided in a work centre, has the obligation to ensure the safety, in terms of occupational risk prevention, of its workers, and in this sense, the Judgment of 22 March states that clauses requesting information from the worker on the risks to which they may be exposed in their workplace are valid as long as the methodology for ascertaining the status of the teleworker’s workplace is as unobtrusive as possible, insofar as exceeding this limit directly entails the nullity of the clause.

The ruling also recalls that the Law grants the company, through Article 22, the power to adopt surveillance and control measures that must in any case respect the privacy and data protection of workers, and in the event that the worker appreciates a violation of these, they must prove this allegation.

After this analysis regarding the clauses of teleworking agreements analysed in different Rulings of our Courts, it can be concluded that, in view of a new Law, as well as a new post-pandemic normality, it is necessary to have good legal advise at the time of signing this kind of agreement, in order to avoid possible nullities or regulatory transgressions that a bad TA may entail.