Teleworking as a Subcategory of Remote Work
Remote work, understood as work performed outside the usual establishments and centers of the company, with teleworking being a subcategory that involves the provision of services through new technologies, has been regulated both at the national and international levels, including the European Framework Agreement on Telework (AMET) of 2002, revised in 2009, and the ILO Convention No. 177 and Recommendation No. 184 on home-based work.
The European Framework Agreement on Telework (AMET), signed by European social partners in July 2002 and revised in 2009, defines teleworking as a form of work organization or performance using information technologies, within the framework of a contract or employment relationship, in which a task that could have been carried out at the company premises is typically performed outside those premises.
In line with the AMET, the recent Royal Decree on Remote Work (RDTD), dated September 22, 2020, defines remote work as a form of work organization or performance where the work is carried out at the employee’s home or another location of their choosing, for all or part of their working day, on a regular basis. Teleworking is a subcategory of remote work, conducted through the exclusive or predominant use of computer, telematic, and telecommunications systems and tools.
The RDTD will apply to workers who regularly meet the conditions described in Article 1.1 of the Workers’ Statute and who perform their duties remotely on a regular basis. It will be considered regular remote work if, during a reference period of three months, the employee works at least thirty percent of their working hours remotely, or the corresponding proportional equivalent depending on the duration of the employment contract.
As a general limitation, the RDTD establishes that, in employment contracts with minors and in contracts for internships or vocational training, remote work agreements will only be valid if they ensure, at a minimum, fifty percent of in-person service delivery, notwithstanding the possibility of remote delivery of theoretical training in these cases.
Remote work will be voluntary for both the worker and the employer and will require the signing of a remote work agreement, which may be part of the initial contract or signed at a later time, without being imposed under Article 41 of the Workers’ Statute, without prejudice to any right to remote work that may be recognized by law or collective bargaining.
The decision to switch from in-person work to remote work will be reversible for both the employer and the worker. This reversibility may be exercised in accordance with the terms established in collective bargaining or, if not available, the terms set in the remote work agreement. Collective agreements may establish the mechanisms and criteria by which an employee performing in-person work can switch to remote work, or vice versa, along with preferences related to specific circumstances, such as those involving training, promotion, and employment stability for individuals with functional diversity or specific risks, the existence of multiple employment or activities, or specific personal or family circumstances.
A worker’s refusal to work remotely, the exercise of reversibility to in-person work, and any difficulties in properly carrying out remote work that are exclusively related to the transition from in-person to remote work will not justify the termination of the employment relationship or the substantial modification of working conditions.
