Remote working has normalised situations that were far less common only a few years ago: employees working from a second home, extending a stay away from their usual residence while remaining connected, or temporarily performing their duties from another country.
However, the fact that work can technically be carried out from almost anywhere does not mean that employees are necessarily free to change the place from which they work without informing their employer.
Spanish remote working legislation requires particular attention to the agreement reached between the employer and the employee, the conditions under which the work is performed and issues that may affect, among other matters, occupational risk prevention, data protection, Social Security and taxation.
The remote working location must be defined
Law 10/2021 of 9 July on remote working requires regular remote working arrangements to be formalised in writing between the employer and the employee.
Article 7 of the Law sets out the minimum mandatory content of the remote working agreement. Among other matters, it must identify the company workplace to which the employee is assigned and the location chosen by the employee for remote work.
Therefore, having an agreed remote working arrangement does not necessarily mean that the employee may work from any location without prior notice.
In addition, Article 8 of Law 10/2021 provides that changes to the conditions established in the remote working agreement must be agreed between the employer and the employee and formalised in writing. This reinforces the importance of not unilaterally altering the conditions originally agreed.
Occasionally working from a second home may appear to be a minor issue, but regularly moving to another city or temporarily working from another country may have legal implications that justify the employer being informed and, in certain cases, authorising the change.
Can an employee work from their holiday destination?
It is important to distinguish between two different situations.
During annual leave, employees are under no obligation to work. Spanish law expressly recognises the right to disconnect from work-related digital communications, both under Article 20 bis of the Spanish Workers’ Statute and Article 88 of Organic Law 3/2018 on Personal Data Protection and Digital Rights.
In addition, Article 18 of Law 10/2021 specifically recognises this right in the context of remote work and requires employers to establish an internal policy defining how the right to disconnect is to be exercised.
A different situation arises when an employee travels to another location and continues working remotely from there before or after a period of annual leave.
In such cases, the remote working agreement, the company’s internal policies and, where applicable, the relevant collective bargaining agreement should be taken into account. If a specific address or place of work has been expressly agreed, changing it unilaterally may amount to a breach of the agreed conditions.
Working from another country involves additional implications
The issue becomes particularly relevant when an employee decides to work from abroad.
Even where the arrangement is temporary, additional legal considerations may arise in relation to:
- Social Security obligations;
- The potential application of employment rules in the country from which the employee is working;
- Tax implications for both the employee and the employer;
- Immigration or residence requirements;
- Occupational health and safety obligations;
- The protection of confidential information and personal data.
In relation to occupational risk prevention, Law 10/2021 requires employees working remotely to be afforded appropriate health and safety protection, in conjunction with the obligations established under Law 31/1995 on Occupational Risk Prevention.
For this reason, it is increasingly advisable for companies to establish internal procedures governing requests for, and where appropriate authorisation of, temporary remote work from another country.
Can the employer know where an employee is connecting from?
Employers have certain powers of supervision and control to verify compliance with employment obligations. Article 20 of the Spanish Workers’ Statute expressly recognises these powers, although they must be exercised with due regard for the employee’s dignity.
At the same time, Article 20 bis of the Workers’ Statute recognises employees’ right to privacy in relation to the use of digital devices and geolocation systems.
Employer monitoring powers are therefore not unlimited.
The use of technological tools capable of identifying an employee’s location must comply with the principles of necessity, suitability, proportionality and transparency, as well as with data protection legislation.
Geolocation, IP addresses and corporate devices
In a digital working environment, different technical tools may provide information about where an employee is working from, including IP addresses, access logs, corporate security systems and devices with geolocation functions.
The existence of these technical capabilities does not mean that any information obtained may automatically be used to monitor employees.
Article 90 of Organic Law 3/2018 specifically regulates the use of geolocation systems in the employment context. Before using such systems, the employer must inform employees and, where appropriate, their representatives in an express, clear and unequivocal manner about the existence and characteristics of the devices, as well as about their rights in relation to personal data protection.
In addition, collective bargaining agreements may establish additional safeguards concerning digital rights, in accordance with Article 91 of the same Organic Law.
Accordingly, the technical ability to obtain information about an employee’s location does not, in itself, amount to a legal entitlement to use that information for any purpose.
Could there be disciplinary consequences?
Working from a location other than the one initially agreed does not automatically amount to misconduct.
Any potential consequences will depend on the specific circumstances, including the terms of the remote working agreement, the employer’s instructions, the duration and significance of the change of location and the applicable disciplinary rules.
Occasionally working from another home without altering the essential terms of the employment relationship is not the same as relocating for an extended period to another country despite an express prohibition or without following the company’s internal authorisation procedure.
Article 58 of the Spanish Workers’ Statute provides that employees may be sanctioned for breaches of their employment obligations in accordance with the classification of offences and sanctions established by law and, in particular, by the applicable collective bargaining agreement.
Before taking disciplinary action, the employer should therefore assess not only the employee’s conduct, but also the proportionality of the measure and the lawfulness of the mechanisms used to verify the alleged breach.
The importance of clear internal rules
The growth of remote working makes it particularly advisable for companies to expressly regulate issues that, until recently, had limited practical relevance.
A properly designed remote working policy should determine, among other matters, the locations from which work may be performed, whether prior authorisation is required for a temporary change of location, the procedure for working from abroad and the monitoring systems that the company may use.
It is also advisable to coordinate these policies with obligations concerning digital disconnection, occupational risk prevention, data protection and information security.
Clear rules provide greater legal certainty for both employers and employees and significantly reduce the risk of future disputes.
At Solium Legal, we advise companies and professionals on employment law, remote working arrangements, internal workplace policies, employer monitoring powers and the protection of employees’ rights.
