Teletrabajo – Home working regulations

It seems to be a fundamental principle of living in Spain that if it moves or breathes it must be regulated.

So, the Spanish Government, obviously with plenty of time on its hands during the Covid-19 crisis, has decided to do something really useful. What else but a shiny, new and virtue signalling law on ‘Teletrabajo’. No wonder the country voted for a Socialist/Trotsky coalition Government at the last elections.

Here is a summary of the regulations:

  • It applies when home working is a normal part of the employment arrangements. In other id does not apply to exceptional circumstances caused by Covid-19.
  • It applies whenever an employee is required to work 30% or more of the working week at home. There was, unsurprisingly, a very public struggle between the employers representatives and the Government, ably supported by union representatives. Originally the Government wanted 20% (one day) as the limit but the employers thought that this was too restrictive. By making an apparent concession to 30% the Government got one over on the Employers. What is 5 x 30%? 1.5 of course. How many employers would really want their employees to work at home for 1 and half days a week. A great fudge!
  • Employee are entitled to the reimbursement of the costs they incur working at home. It is clear that equipment and consumables needed for work must be provided by the employer but as to ‘costs’ the text is very unclear and remits the problem of interpretation to the ‘convenios’, the collective trade agreements that apply to almost all employments. If nothing appears in the relevant convenio and no agreement with employees is possible then it seems likely that the employer can ignore claims for incidental costs. Of course, the savings achieved by the employees in not having to travel to work are ignored.
  • A formal agreement has to be made between each employee and the employer. Typically this will be an extra few paragraphs in the employment contract.
  • The agreement must be formulated within three months of employment. So, existing home working arrangements need to be formalised with a written agreement with each employee by 22 December 2020.
  • The agreement is reversible at will by the employee or the employer. You have to ask yourself what happens if the employer is using hot-desking with very limited space and a lot of employees decide to work in the office, and desk space runs out? Where do they work?
  • Employees will be entitled to recover their costs for any pre-existing arrangements. As the regulations do not apply to exceptional circumstances this clause does not allow employees to claim against their employers for home working since the start of the Covid-19 crisis.
  • Terms of employment must be the same for those who work at home as those who don’t and there must be equality of treatment, including remuneration, training, promotion, working hours.
  • Employers have the right to reasonable means of controlling work done by employees, that must not be intrusive or ‘undignified’.
  • For existing employment arrangements the rules are subject to a transitional period of one year before they come into full force. This may be extended to up to three years by the Government.

Almost without exception employers will have a sensible relationship with their employees and so a similar regime will already exist, so why have these regulations at all? You might as well reduce the entire content of the regulations to a single clause “Common sense will apply to all parties”.

These new regulations have taken three months to negotiate with the representatives of employers and the trade unions. Inevitably, perhaps, it fails one of its fundamental purposes of regulating which costs an employee should be entitled to claim. To have attempted this would have entered into the minutiae and infinite range of possibilities involved with employees home life and the characteristics of different jobs. So we wonder what is the point of the legislation?

Like so many of rules we live with today, they are designed to crack down on abuse that is practised by a very small minority. Employees, surely, will move to an employer who is not abusive? Is this not how a mature employment market works?

Spain is heavily criticised by the EU and economic commentators world-wide for its rigid, sclerotic and over regulated labour system. This unnecessary piece of legislation is a wonderful example of what is wrong.

Spence Clarke & Co specialises in the provision of Spanish tax, legal, audit and accountancy services, mainly to foreigners with interests in Spain. Our cross-border knowledge helps clients adapt to the Spanish system with the minimum of doubt and disruption. If you have any questions about this article or any other matter contact us, with no obligation, to see how we can help you.