Work with a sea view, return to the city or put down roots in another country. The possibility of taking a long walk in the mountains or swimming in a paradisiacal bay when the computer is turned off. Before the pandemic, the decision for a change of scenery seemed like a chimera, but the health crisis that erupted in 2020 enabled a change in the lives of many professionals. According to a Eurofound survey, three out of ten workers in Spain started teleworking at this time. After almost four years, some of these adventurers are engaged in a legal battle with their companies to preserve their fortress. Now the judges are deciding this dispute. To do this, they compare the motives and interests of the employer and the employee.
For example, in a recent ruling, a court in Madrid dismissed the lawsuit of a computer company that sought permission from its company, a bank, to telework 90% of the time in order to be able to care for its baby in the city from Castellón, where he moved in 2020. The judge concluded that the organizational needs of the bank, which had agreed with its employee who would come to the office two days a week, were unilateral over the “personal decision to change the place of residence.”
On the contrary, a court in Avilés recognized the right of a researcher to work from La Coruña (her workplace was 250 kilometers away) and to go to the office only on one Monday out of fifteen days. In this case, the concern for the minor outweighed the employer's motives. The woman had worked remotely for a year and a half and the judge saw no “disruption or damage to the company during that time.” The ruling is from February 2022. The conflict over remote work is increasing. According to the laleydigital database, resolutions that include the term telework have increased sixfold since 2019.
childcare
Caring for children is one of the reasons why working people don't return to the office. Some of these minors were already born in the new residence. The employee statute allows you to request an adjustment to the working day to balance work and family life if you are responsible for a child under twelve years of age. But having children isn't always a license to ask your boss to telecommute. For Noé Fau, lawyer at Ceca Magán, a Castellón-based law firm that defended the bank in the IT case, the ruling makes it clear that employees “cannot simply assert a kind of transfer right.” In other words, the statute does not protect those who move voluntarily, but rather those who move due to a family emergency.
There are always shades of gray in employment law. The law, emphasizes Diego Rizo, lawyer at Gómez-Acebo & Pombo, does not give the employee the right to “request” telework. You need to sit down and talk. There must be an “official response” within a maximum of fifteen days. The requests, the lawyer emphasizes, must be “appropriate and proportionate” in relation to the arbitration needs of the employee and the organizational or productive needs of the company. Of course, according to Rizo, the company is obliged to “explain the objective reasons on which it bases its decision” when rejecting the application or proposing an alternative. For example, because the position requires physical presence or the employee has not “reliably” explained the reasons for his request.
Pandemic teleworkers may believe this is an acquired right. But the majority of lawyers rule out any consolidation of their situation. Pere Vidal, associate at RocaJunyent, claims that “teleworking, introduced during this period as an exceptional measure, does not automatically result in an acquired right for the worker.” The return to routine, especially after the official end of the health crisis in July 2023 , “does not violate the rights of the employee nor does it constitute a significant change in working conditions,” the lawyer adds. In the same vein, Noé Fau defends that “in order for the existence of a more favorable condition to be maintained, a clear commercial will to grant this condition is necessary.”
However, Adrián Todolí, professor of labor and social security law at the University of Valencia, points out a loophole: the company maintained teleworking without question and did not regulate the post-pandemic situation by signing an agreement. “It could be considered an acquired right, although of course a number of circumstances would have to arise,” he adds.
The path of fait accompli can be dangerous. Holing up in the beach house and ignoring your boss's orders can get you fired. This happened to a worker at a company based in El Prat de Llobregat. He ignored requests to return to the office for half his day up to four times in 2021 because, he reported, he had changed his address to Valencia. Last October, the Supreme Court of Catalonia approved the professional's disciplinary dismissal and rejected teleworking, which had been temporary, as his new working condition.
Experts warn: indiscipline can be punished. As lawyer Víctor Canalda states: “If, in the face of a legitimate direct order, the worker does not work in the center to which he belongs, a suspension of employment and salary may be imposed or he may even be dismissed.”
Apartment rental costs
One aspect of returning to workplace presence is that returning to the city of work may be harmful for those who signed a lease in the place they moved to during the pandemic. However, according to Fuentes-Lojo, a real estate law firm, this is a weak excuse. Firstly, because the law allows the tenant to withdraw from the contract by informing his landlord one month in advance if he has been living in the apartment for six months. Furthermore, with a penalty clause, “the maximum penalty would be one month for each year of non-compliance; “You can never demand payment of the entire rent.”
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