New rules for homeoffice

On 22 September 2020 the Royal Decree-Law 28/2020 (RDL) was passed, which for the first time regulates the legal framework of working in homeoffice. The decree comes into force on 13 October 2020. Subsequent there will then be a transitional period of three months during which employers and employees will have to reach an agreement in accordance with the new regulation if preexisting other agreement on working in homeoffice. Any collective agreement arrangements must be brought into line with the new regulation within one year.

The decree regulates working in homeoffice, i.e. the situation in which the employee regularly (according to Art. 1.1 RDL in a reference period of three months at least 30% homeoffice) carries out the activities regularly carried out in the office at home. The decree is therefore not applicable to homeoffice caused by a pandemic (it is not only the homeoffice during the corona pandemic that is supposed to be regulated).

The key points of the RDL can be summarised as follows:

- Homeoffice is voluntary for both sides (cannot be ordered/requested unilaterally) and requires a written agreement (which can be included in the employment contract or signed subsequently) The refusal of the employee to work in homeoffice is not a reason for termination.

- Employees who work in homeoffice have the same rights in every respect as their colleagues in the office.

- At least the following aspects must be clarified in the written agreement:

(a) Inventory of the resources required for the homeoffice, including consumables and furniture, and their useful life or periods for their renewal.

(b) A list of all costs that the employee may have to pay for the homeoffice and a quantification of the compensation that the company will have to pay to the employee.

(c) The employee's working hours and, where appropriate, periods of availability.

(d) Percentage ratio and, if applicable, distribution between office and homeoffice work.

(e) Work centre of the company to which the employee is assigned and where he/she may be required to execute his/her attendance time.

(f) Location that the employee chooses for the home office.

(g) Time limits for revoking the agreement if applicable.

(h) Means of control of the work by the employee.

(i) Procedure to be followed in the event of technical difficulties that affect normal homeoffice work.

j) Company instructions in terms of data protection for the homeoffice (in consultation with the employee representatives)

k) Company instructions in terms of information security for the homeoffice (to be communicated by the employer in advance to the employee representatives)

(l) Duration of the homeoffice agreement

- Any changes to the agreement must be made in advance and also in writing, and must be notified to the employee representatives.

- Contracts with trainess and minors must provide for at least 50% attendance times in the office.

- Employees who work full-time in homeoffice from the start of the employment relationship (i) have preferential access to workplaces in the office, (ii) the company must inform these and the employee representatives of any vacancies in the office. Collective agreements or agreements may lay down criteria for employees to acces to homeoffice or work at the office (depending on training, family situation, disability, etc.).

- The employer must submit a copy of the homeoffice agreement to the employee representatives within 10 days of signing it (although certain data must be blacked out for data protection reasons), see Art. 6.2. RDL. After the latter has countersigned the agreement, it must be forwarded to the labour authorities. If there is no employee representation, the copy must be sent directly to the authorities.

- The employer has to bear the costs for the homeoffice, he also has to provide the employee with the means necessary for it.

For the first time, the RDL regulates various details in terms of homeoffice. In view of its steadily growing importance, this is to be welcomed in any case. However, many details must be agreed directly by the parties. There is cause for caution here, which is why employers in particular should seek appropriate advice when formulating these agreements.

Autor: Luis Bravo