The importance of establishing the “telework” agreement with your employees

Until a few months ago, telework was only tersely regulated in article 13 of the Workers' Statute. However, the approval of Royal Decree-Law 28/2020 of 22 September, provided a more detailed regulation of the different aspects to be defined in a telecommuting relationship.

One of the main novelties brought about by this Royal Decree-Law was the obligation established in Article 6 et seq. to draw up a written agreement between the company and the employees that appropriately regulates remote working relationships.

As a consequence of this obligation, the revised text of the Law on Offences and Penalties in the Social Order was amended to classify the failure to formalise a remote work agreement as a serious offence, punishable by a fine of between 626 euros and 6,250 euros.

For this reason, we believe it is appropriate to make a brief reminder to all those companies that are thinking of implementing a teleworking policy once the health containment measures derived from covid-19 have come to an end, and even to those that already maintained remote working relationships before the entry into force of the aforementioned regulation (13-10-2020).

In both situations, we recommend that you draw up a remote work agreement as soon as possible (or adapt the one you had to the new regulation), in order to avoid your company being sanctioned.

From an employment perspective, we remind you of the most relevant implications established by this Royal Decree-Law:

• Remote work is considered to exist when in a period of three months, at least thirty percent of the working day is provided in this way.
• The remote work agreement must be formalised prior to the commencement of the work itself, and must be made voluntarily and agreed between the parties, as must subsequent modifications to the agreement.
• With regard to the minimum mandatory content that must be included in the individual remote work agreement, without prejudice to the regulations contained in collective agreements, we find the following points:
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    • Inventory of means, equipment and tools necessary for the development of remote work.
    • List of the expenses that the worker may incur and quantification of the compensation.
    • Working hours and, where appropriate, availability rules.
    • Percentage and distribution between face-to-face and remote work.
    • Work centre to which the worker is assigned and where, if applicable, he/she will carry out the face-to-face part of the working day.
    • Place of remote work chosen by the worker.
    • Notice periods for the exercise of reversibility situations.
    • Means of company control.
    • Procedure in the event of technical difficulties.
    • Instructions on data protection and information security.
    • Duration of the telecommuting agreement.
• The principles of equality and non-discrimination with respect to face-to-face work must be maintained.
• The provision and maintenance of resources, payment and compensation of expenses will be the responsibility of the company, and the employee will not be able to assume the expenses derived from the development of their remote work.

At Baker Tilly we are committed to ensuring that your company does not take unnecessary risks. We therefore invite you to contact our Employment Advisory division to resolve any queries you may have and even to help you draft or adapt the agreement to comply with current regulations.