In the Remote Work Law enacted in July 2021 there is an expression that is repeated several times throughout the text and that is key to understanding the adoption of this modality in all private companies in Spain: voluntary nature. This means that neither the company nor the employee can force the other party to work remotely, and that the decision must be negotiated and agreed upon. However, two recent court rulings have forced two companies to grant it to two workers who requested it and found no for an answer.
Why? To understand these sentences, it must be taken into account that, despite the fact that there is a specific rule that regulates teleworking in Spain, it is not the only regulation that affects this type of work. Another is the Workers’ Statute, and it is precisely this law that the judges in both cases have based on to decide that the two employees had the right to request to work remotely due to their family situation, and that, therefore, they were can force companies to grant it.
Article 34(8) of the Workers’ Statute It states that “working people have the right to request adaptations to the duration and distribution of the working day, in the organization of working time and in the form of provision, including the provision of their work remotely, to make their work effective. Right to reconcile work and family life. […] In the event that they have sons or daughters, workers have the right to make such a request until the sons or daughters are twelve years old.
The cases. In the two cases that concern us, the workers complied with the requirement contained in the Workers’ Statute. In the oldest, met in February this yearthe worker is the mother of a one-year-old child; In a second, The employee has two children under the age of 12 in her care.
In both cases, moreover, the professionals had telecommuted on a mandatory basis as a result of the pandemic, and the rulings state that there was no evidence that their performance had dropped during that period. Therefore, the judges considered that there were no compelling arguments to deny them remote work.
In addition, the companies did not provide other objective and compelling evidence to justify that, in order to perform the job, it was essential to go physically to the organization’s facilities. In the case of the first company, only organizational reasons were given for requesting face-to-face attendance, while the second company only stated that teleworking “was not ideal for the smooth running of the company”.
Impact. These two sentences, which are the only ones, at the moment, that give the workers a firm reason to be able to carry out their work remotely for reasons of family conciliation, set an important precedent, since they show that the workers can force their companies, in certain cases, to grant them telecommuting, at least partially, during their working day in order to be able to take better care of their children.
The two professionals in these cases obtained four and three days of remote work thanks to the cited sentences.
Image | Anastasia Shuraeva