Who assumes the costs of teleworking in Spain?

Since March 2020, and as a consequence of the COVID-19 pandemic, one of the main obstacles at the labor level is the interpretation and regulatory development linked to teleworking expenses. 

For this reason, we have proposed this article to explain what has happened in this matter from March 2020 to September 2022 and to know who should or should not pay the expenses of workers from their homes.

We go back to the month in which we were all locked up at home, March 2020. Royal Decree-Law 8/2020, of March 17, regulated what COVID teleworking was, that is, that teleworking or work at distance had originated unexpectedly by the pandemic and its objective was to guarantee a series of health containment measures. However, this Royal-Decree did not establish any regulation regarding the compensation of expenses derived from teleworking.

The fact that a specific compensation was not regulated, led to the existence of claims by certain Union Sections for the purpose of obtaining compensation derived from teleworking expenses.

In this sense, in June 2021, the National Court ruled on the aforementioned claim in the Contact Center Sector, in its Judgment 132/2021, in which it established the following:

1. irstly, Covid Teleworking was maintained as a health containment measure after the end of the state of alarm. 
2. Covid Teleworking did not contemplate the compensation of expenses in any way.
3. From there, the compensation of expenses should be reflected either in a Collective Bargaining Agreement, in individual agreements, or in the justification that each worker could have for the expenses they incurred.

When we began to glimpse signs of the end of the pandemic with the first doses of the vaccine in July 2021, the Law 10/2021 on remote work was born. Said Law regulates the essential aspects of structural teleworking that occur beyond the pandemic situation. In said norm, article 7 establishes the obligation to regulate teleworking in a specific contract where it is expressly established and refers also to the compensation of expenses that derive from it.

However, for preventive reasons, many companies have continued to use Covid Teleworking, arguing that they did not have to compensate any expenses. All of this, let us remember, due to the exceptional regulation contained in DT 3 of the Remote Work Law (formerly DT 3 of RD 28/2020), which expressly establishes that the regulations will continue to apply to Covid Teleworking remotely, which does not provide for compensation of expenses. 

The passage of time and the return to normality make taking advantage of the exceptionality of Covid Teleworking increasingly complicated.

Current post-pandemic situation: Who pays for teleworking expenses?

The panorama with which companies are going to find themselves at the beginning of the course, since they are not capable of arguing the application of the COVID exception, is still that of the full application of the Remote Work Law, with all the peculiarities that this entails.

Thus, companies from now on will be forced to negotiate future teleworking agreements that must respect the minimum contents established in the Distance Work Law

In this regard, I would like to highlight the AN Judgment dated March 22, 2022, which establishes certain premises that teleworking agreements must contain:

1. The teleworking agreements will be valid despite the fact that there is no collective agreement with the legal representation of the workers.
2. It will be necessary to list and identify the expenses that the company will compensate in the teleworking agreements.
3. The Court points out that both corporate mail and mobile phones are equipment that the employer must provide, as well as pay for their price and maintenance.

   owever, this Judgment clearly establishes that workers must take care of the means made available by the Employer. It even allows the non-return of means to be discounted in the settlement if these have been duly quantified, as overdue, liquid and enforceable debt.

4. Both the employer and the worker can decide to revert to remote work, as it is understood that the teleworking agreement is a voluntary agreement that is reversible for both parts.
5. Finally, the Court allows the existence of surveillance clauses, in accordance with the provisions of article 22 of the Remote Work Law.

inally, in a recent Judgment dated June 27, 2022, the National Court also establishes that the company will have the obligation to make available to the workers, as well as their Legal Representation, a communication channel, in such a way that respects the trade union rights of workers. As a consequence of the increase in the volume of workers, who take advantage of the teleworking formula, the work of communication by the Unions has been reduced. This resolution is intended to re-establish this communication work.

If you want more information in this regard or have the advice of lawyers specializing in teleworking policies, you can contact our lawyers here.

Luis Pérez Juste

Partner of Labor Department