Innovations Introduced By Royal Decree Act 28/2020 Of 22 September, Regarding Remote Working

I. Teleworking

In accordance with the Royal Decree-Act, distance working is defined as carrying out a professional activity outside the company’s usual premises or centre, for all or part of the day and on a regular basis.

The regular nature of distance working necessarily requires that, in a reference period of three months, a minimum of thirty percent of the working day is carried out this way or, otherwise, the proportional equivalent according to the duration of the employment contract.

As regards teleworking, this is a type of distance working using electronic means of communication or new technologies.

II. Validity of the regulation.

The Royal Decree-Act shall come into effect 20 days following its publication in the Official State Gazette, as laid in its fourteenth additional provision, with certain exceptions that shall come into force directly on 23 September 2020 (third, fourth, fifth and sixth additional provisions, the fourth transitional provision, and the fourth, fifth, eighth, ninth, tenth, eleventh and twelfth final provisions).

III. Affected workers and companies.

Workers affected by this law are those who carry out a professional activity on behalf of others, that is, salaried employees, as set forth in Article 1 of the Royal Decree-Act, which refers to Article 1.1 of the Workers’ Statute, which regulates this type of employment relationship.

Nevertheless, the new regulation laid down by the Royal Decree-Act shall not be applicable to distance work carried out on an exceptional basis due to the situation arising from Covid -19, as provided by the third transitional provision. It shall therefore continue to be governed by ordinary labour regulations.

Furthermore, the Royal Decree-Act shall be fully applicable to any labour relations in effect and which were regulated prior to this one by collective bargaining agreements or arrangements regarding the conditions for providing remote services, from the time they cease to be effective.

In the event that the collective bargaining agreements or arrangements have not provided a term of duration, the Royal Decree-Act shall be applicable after one year as from 23 September 2020, although the parties to the agreements may provide a longer term, which shall last up to a maximum of three years.

IV. Voluntary basis of distance working.

Pursuant to Article 5, distance working is entirely voluntary for the worker and the employer, requiring both parties to express their agreement in writing. Additionally, the decision to work remotely from a face-to-face mode is reversible, so a worker may, with their employer’s agreement, return to work at their usual workplace at any time.

The worker’s refusal or difficulty to work at a distance or to exercise reversibility to face-to-face work shall in no case be grounds for terminating the employment relationship or for a substantial modification of working conditions.

V. Formalisation of the distance working agreement.

In accordance with Article 6, the agreement must be made in writing before the distance work begins. Compliance with this requirement is the responsibility of the company, which must also notify the employment office of telework agreements and their updates within a period no greater than ten days as from their formalisation. In this notification, the company must detail, among other items, the following:

– An inventory of the means, equipment and tools required to carry out the remote work and which are provided to the worker, including their useful life.

-A list of expenses that the worker may incur and which shall be paid by the company.

-Working hours.

– Distribution of days of face-to-face work and distance work, in addition to the business centre to which they are assigned and the place from which they are to carry out the telework.

– Means of control that are to be applied by the company regarding the activity carried out.

– Duration of the distance working agreement.

In accordance with Article 8 of the Royal Decree-Act, the distance working agreement may be modified by agreement of both parties, in which case it must be formalised in writing prior to application.

VI. Workers’ rights.

In accordance with articles 9 to 19 of the Royal Decree-Act, workers are entitled to the following rights:

  • The right to training, with the right to take part in training actions in the same way as if they were providing service in the workplace.
  • The right to professional promotion and advancement, in the same terms as those who provide their services in person.
  • To be provided, by the employer, with all the means, equipment and tools necessary for carrying out the telework, as well as its maintenance and adequate technical assistance in the event of problems.
  • To not assume any expense in relation to the equipment, tools and means associated with carrying out their work activity.
  • Flexibility in the timetable for providing the established services, duly recording the start and end of the working day.
  • Protection in terms of occupational health and safety, paying greater attention to psychosocial, ergonomic and organisational factors.
  • The right to privacy and data protection, with no obligation to install programs or applications on devices owned by the worker, nor for these devices to be used in carrying out the remote work.
  • The right to digital disconnection, outside working hours, thus limiting the use of technological means of work during rest time.
  • To be entitled to exercise their rights of a collective nature with the same content and scope as the rest of the workers in the business centre to which they are assigned.

Furthermore, Article 4 enshrines the worker’s right to equal treatment and opportunity and the prohibition against discrimination. This right means that, in general, carrying out distance work may not lead to the impairment of rights and/or opportunities with regard to workers providing services in the workplace.

VII. Powers of the company.

The following are laid down under Articles 20 to 22 of the Royal Decree-Act:

  • Give instructions to workers who are carrying out remote work regarding data protection and information security.
  • Establish the conditions of use and conservation regarding the equipment or computer tools provided to the worker.
  • Adoption of necessary surveillance and control measures to verify the worker’s compliance with his or her obligations and duties at work.

 VIII. Collective bargaining.

Throughout the Royal Decree-Act, the importance of collective bargaining is underlined as regards the specific conditions under which distance work is to be carried out, taking into account each company or sector’s particular characteristics.

Inter alia, collective bargaining agreements shall guarantee the regulation of a minimum working day in the context of distance work, as laid down in the first additional provision.