New work-from-home law comes into force: What it means for staff and firms

Key to all aspects of the new law is that a signed agreement covering all eventualities is required between firm and worker, and that nothing can be 'imposed' in either direction.

With an estimated three million employees in Spain currently working from home as standard practice – up from one million in 2019 – and predictions that at least 50% of all working hours in the country could be off-premises within a decade, the need to ensure legal coverage was pressing, and the government has been working against the clock to lay down guidelines and rules.

Although the idea of working at least part of the time from home or from another location such as a café or even park bench would appeal to most employees, many may have their reasons for not wanting to do so, and legally, any arrangement to switch to this mode of operation must be voluntary on the part of both the staff member and the firm.

It must also be reversible, so if the worker finds out three months down the line that he or she is just not productive away from the office, finds it difficult psychologically – isolating, for instance, or there are too many distractions at home – or the company finds it needs staff on the premises more often, or all the time, the original deal struck between the parties means the arrangement can be undone.

Refusal to work from home, exercising one's right to reverse the set-up, or finding out that off-premises working impedes ability to carry out one's duties, can never be considered justification for an employee's being fired or for his or her working conditions or pay to be significantly altered for the worse.

It is expected that most cases where working from home is introduced by agreement will see the employee splitting his or her time, to a greater or lesser proportion, between the workplace and home, although the law also covers those who decide between them for all professional duties to be conducted off-premises.

Staff working away from the business premises are required to quantify and justify any expenses they incur as a result of doing so, and the company is legally obliged to pay them – it cannot, for example, refuse to cover the cost of necessary new computer equipment or an essential internet connection upgrade on the basis of, 'by not coming into the office, you save on petrol and parking'.

These expenses might include equipment, internet, phone bills, and even electricity if this increases as a direct result of home-working – such as in high summer or deep winter, when the employee may need to make much greater use of air conditioning or heating, which would not have been necessary when he or she was at work and out of the house.

But no company will be obliged to pay a staff member's entire electricity bill as a result of home-working – only the extra power used for carrying out the job.

Employees on work experience or on training contracts, who are not yet considered 'qualified', are only allowed to spend a maximum of 50% of their work time off-premises, since it is deemed that, by default, if they are trainees, they will need some supervision and instruction to enable them to learn their rôle properly.

As for whether bosses can 'keep tabs on' staff whilst they are working away from the business centre, some flexibility is permitted on either side: This can be, perhaps, one of the key incentives for an employee to working from home, knowing that they are not going to have their managers suddenly appearing and scrutinising their screens over their shoulders, or listening in to their telephone calls, making them nervous and leading to them making mistakes.

The new law establishes that companies can agree with home-working staff 'those measures they deem necessary' for 'supervision and monitoring', to ensure the employee complies with his or her duties, and which may even involve 'use of digital means', but criteria for their nature and use must be clarified and agreed – data protection and the right to privacy means there is a limit to how far a firm can 'spy' on staff, even when they are in the office; having a permanent webcam open to 'keep watch' on a home-worker, for example, is not allowed.

Also, the company cannot oblige the worker to install programmes or download applications onto personal devices.

Staff working outside the office, as is the case with on-site employees, have a legal right to 'switch off', meaning they cannot be called or expected to answer messages at any hour of the day or night just because they are at home.

Working hours can be flexible, and this is encouraged, since home-working can be ideal for enabling staff to combine essential family duties with a job, but 'obligatory availability time', or core hours, need to be agreed where the business is of this nature, such as in a customer service rôle, or for Zoom meetings.

Specific times before and after which an employee cannot be contacted in relation to work matters must be established, or a limit on the number of hours per day.

Additionally, companies are required to obtain all the information they need to ensure the worker's health and safety and risk prevention.

The new legislation does not cover those employees who are working from home as a safety measure arising purely through the pandemic – except for the company picking up the tab for extra expenses, which should be negotiated, ideally through unions.

Otherwise, in cases of purely 'pandemic home-working', all other employment legislation applies, including that of the firm's obligation to provide 'all necessary means, equipment, tools and perishables for the practice of the rôle', as well as their maintenance.

The law does not necessarily apply where, for example, a full-time employee spends one day a week or a fortnight working from home because of difficulties preventing him or her getting to the office, but which do not impede actual professional function – it only applies to those who spend at least 30% of their hours, or duties if these are not counted in hours, working off-premises, and for a minimum period of three months.

Companies are now obliged to draw up a collective agreement within the next year covering home-working where this is expected to be a feature of the business beyond the pandemic, although they have up to three years to draft the agreement and bring it into force if it is jointly created between the firm and staff representatives, such as unions.