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They don't move me from the beach: this is the battle of the 'last of the Mohicans' of teleworking

2024-02-25T05:02:52.063Z

Highlights: Three out of every ten employees in Spain began teleworking during the pandemic. Judges settle disputes between employees who do not want to return to the city after moving. A Madrid court has rejected the claim of a computer scientist who wanted her company to let her telework 90% of the time so she could take care of her baby. Resolutions that include the term teleworking have increased sixfold since 2019, according to the laleydigital database. The Workers' Statute allows you to request an adaptation of the working day if you are responsible for a child under twelve years of age.


The judges settle disputes between employees who do not want to return to the city after moving during the pandemic and their companies


Work with sea views, return to town or put down roots in another country.

Being able to take a long walk in the mountains or bathe in a paradise cove when the computer turns off.

Before the pandemic, opting for a change of scenery seemed like a chimera, but the health crisis that broke out in 2020 allowed a change in the lives of many professionals.

According to a Eurofound survey, three out of every ten employees in Spain began teleworking at that time.

After almost four years, some of these adventurers are fighting a legal battle with their companies to keep their stronghold.

It is now that the judges are settling this dispute.

To do this, they balance the motives and interests of the employer and those of the worker.

In a recent ruling, for example, a Madrid court has rejected the claim of a computer scientist who wanted her company, a banking entity, to let her telework 90% of the time so she could take care of her baby from the town of Castellón, where He moved in 2020. The magistrate has concluded that the organizational needs of the bank, which had signed with its employee that she would come to the office two days a week, are above the “personal decision to unilaterally transfer the place of residence.” .

On the contrary, a court in Avilés did recognize the right of a researcher to telework from La Coruña (her workplace was 250 kilometers away) and only go to the office one Monday of every fifteen days.

In this case, the care of the minor in charge outweighed the employer's motives.

The woman had worked remotely for a year and a half and the magistrate did not appreciate “any disruption or harm to the company during this time.”

The ruling is from February 2022. Conflict over remote work rebounds.

Resolutions that include the term teleworking have increased sixfold since 2019, according to the laleydigital database.

Child care

Taking care of children is one of the reasons that professionals cling to for not returning to the office.

Some of these minors were already born in the new residence.

The Workers' Statute allows you to request an adaptation of the working day to reconcile family and work life if you are responsible for a child under twelve years of age.

But having children is not always a carte blanche to demand teleworking from the boss.

For Noé Fau, lawyer at Ceca Magán, a law firm that defended the bank in the Castellón-based IT matter, the ruling makes it clear that employees "cannot claim a kind of right to transfer just because."

In other words, the Statute does not serve as an umbrella for those who change places voluntarily, but for those who move due to a family emergency.

In labor law there are always grays.

The law, points out Diego Rizo, lawyer at Gómez-Acebo & Pombo, does not give the employee a right to “demand” teleworking.

You need to sit down and talk.

In a maximum of fifteen days there must be an “official response.”

The requests, the lawyer emphasizes, must be “reasonable and proportionate” in relation to the conciliation needs of the worker and the organizational or productive needs of the company.

Of course, the company, Rizo specifies, is obliged “to explain the objective reasons on which it bases its decision” if it rejects the request or proposes an alternative.

For example, because the position requires physical presence or that the employee has not “reliably” proven the reasons for his or her request.

Pandemic teleworkers may be convinced that theirs is an acquired right.

But the majority of jurists rule out that their situation is consolidated.

Pere Vidal, associate at RocaJunyent, maintains that “teleworking implemented as an exceptional measure during that time does not automatically translate into an acquired right for the employee.”

The return to routine, especially after the official closure of the health crisis in July 2023, “does not infringe the rights of the worker nor does it constitute a substantial modification of working conditions,” adds the lawyer.

Along the same lines, Noé Fau defends that “in order for the existence of a more beneficial condition to be sustained, there must be an unequivocal business will to grant it.”

Adrián Todolí, professor of Labor and Social Security Law at the University of Valencia, points out, however, a loophole: that the company has maintained teleworking without question and has not regularized the situation by signing an agreement after the pandemic.

“It could be considered an acquired right, although obviously a series of circumstances would have to occur,” he adds.

The fait accompli route can be dangerous.

Holing up in the beach house ignoring the boss's orders can end in dismissal.

This is what happened to a worker from a company located in El Prat de Llobregat.

On up to four occasions he ignored the request to return to the office during half of his day in 2021 because, according to what he reported, he had changed his address to Valencia.

Last October, the Superior Court of Catalonia endorsed the disciplinary dismissal of the professional, rejecting that teleworking, which had been temporary, was his new employment condition.

Experts warn: indiscipline can be punished.

As lawyer Víctor Canalda states: “In the face of a legitimate direct order, if the worker does not go to work at the center where he belongs, he may be suspended from employment and salary or even fired.”

Housing rental expenses

One of the aspects of returning to presence at work is that returning to the city of the workplace can be detrimental to those who have signed a rental contract in the place to which they moved 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 notifying his landlord one month in advance if he has been in the home for six months.

Furthermore, if there is a penalty clause, “the maximum fine would be one month per non-compliant year;

"They can never demand payment of the total rent."


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Source: elparis

All business articles on 2024-02-25

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