New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Yes. The Spanish government has passed new laws on remote working. First, on 22 September 2020, it approved Royal Law-Decree 28/2020 on remote working, followed by the Spanish parliament passing Law 10/2021 on remote working, superseding it but keeping most of its provisions.

This law applies to any kind of labour relationship in which at least 30% of a worker’s working hours are at their home or wherever they decide. Therefore, there is no specific regulation on “gig” workers or independent contractors.

Additionally, the Spanish government passed a specific regulation in article 5 of Royal Law-Decree 8/2020, through which companies should encourage and prioritise remote work among their staff because of the covid-19 pandemic, as long as this is feasible for their business.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Apart from the general personal data protection issues to be considered, there are two significant risks.

First, under article 17 of Law 10/2021, any digital program or software to monitor remote workers must grant employees privacy and protection of personal data according to the Organic Law on Personal Data Protection and Digital Rights Guarantees. In particular:

  • an employer’s access to the digital technology provided to the remote worker must be limited to checking compliance with labour obligations and to guaranteeing the integrity of the devices;
  • employers must establish the terms of use of the digital devices, and the workers’ representatives must participate in drafting them;
  • employers must inform remote workers about the terms of use of the digital devices; and
  • regardless of the terms of use, an employer’s access to the digital means must be necessary for the employer to achieve a legal purpose, appropriate for such legal purpose and proportional to achieve such legal purpose. Based on this, the employer should implement the least invasive way of monitoring remote workers’ activity to achieve the legal purpose the employer is pursuing.

Any measure to monitor employees’ activity should meet these requirements; otherwise, an employer’s decision arising from such monitoring could be deemed unfair, and there could be a breach of the employee’s privacy, which could lead to a damages claim and an administrative fine.

Second, employers must comply with the principles of personal data processing under article 5 of the GDPR, especially purpose limitation and data minimisation, which means that the personal data the employer can process should be only what is the minimum necessary data for the performance of the labour contract or compliance with their legal obligations. Therefore, employers are not entitled to, for instance, force remote workers to turn on their cameras during working hours.

Third, despite remote working, employers must comply with health and safety obligations, which could lead to the employer or its health and safety services provider visiting an employee’s home to evaluate its risks. In that case, employers should issue a report justifying the visit and provide it to the remote worker and the health and safety workers’ representatives in advance. Additionally, to access any remote worker’s home, the employer must first obtain their consent.

If they do not give their consent, measures on health and safety should be based only on the information provided by the remote workers.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

In general terms, there are no substantial differences between remote and on-site workers.

Any digital program or software to monitor workers must guarantee their privacy and the protection of their personal data under the Organic Law on Personal Data Protection and Digital Rights Guarantees.

Article 17.2 of the Law on Remote Working provides that the employer cannot force employees to install programs or apps on their private devices, or to use their private devices for work.

Regarding workers who travel regularly to carry out their duties, under article 90 of the Organic Law on Personal Data Protection and Digital Rights Guarantees, any geolocation system must comply with the requirements mentioned above (ie, be necessary, appropriate and proportional), and employers must inform the workers and their legal representatives specifically, clearly and unambiguously of the existence and characteristics of such systems in advance. Besides, the employer must inform them that they may exercise their rights to access, rectification, erasure and restriction of the processing of data.

Collective bargaining agreements may provide additional information on this topic.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Under article 11 of the Law on Remote Working, employers must provide remote workers with the necessary means, tools and maintenance to provide their services remotely. Employers must also offer remote workers with support services, if technical problems arise. The means and tools employers provide workers with should be listed in the remote-work agreement.

If parties agree on an employee using his or her private means for labour purposes, the employer should compensate that worker.

Employers should also compensate or reimburse remote workers for expenses associated with remote working, such as internet, electricity, water or gas bills. These expenses and how to reimburse them should be listed on the contract. Collective bargaining agreements may determine the expenses and the amounts to compensate.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Labour law

Under article 8 of Regulation (EC) 593/2008 on the law applicable to contractual obligations, employment contracts should be governed by the law chosen by the parties, but this choice cannot deprive employees of any inalienable protections under the law of the country from which they habitually carry out their work. This, in practice, means that remote-working contracts, regardless of their content, are governed by the law of the country from which the remote workers mostly work.

Social security law

Under article 11 of Regulation (EC) 883/2004 on coordinating social security systems (Regulation 883/2004), remote workers will be subject to the social security regulations of the country where they provide their services.

However, under article 12 of Regulation 883/2004, if remote workers are posted by their current employer to another EU member state to perform work on that employer’s behalf, they should continue to be subject to the legislation of their member state of origin, provided that the anticipated duration of such work does not exceed 24 months, and that they are not sent to replace another posted person.

If the remote workers come from a country outside the EU, the bilateral agreement on social security between Spain and that third country, if any, should apply.

Breaching this obligation may result in the Spanish social security authorities claiming any unpaid contributions from the employer (around 30% of the monthly salary, capped at €4,070 per month) for the past four years, plus a 20% surcharge and interest. Additionally, the employer may face administrative fines ranging from €6,250 to €10,000 per employee (as of 1 October 2021, from €3,750 to €12,000 per employee) for failure to register, and ranging from 50% to 150% of unpaid social security contributions, plus a 20% surcharge and interest, for the past four years for defaulting on social security contributions.

Tax law

Remote workers could trigger a Spanish permanent establishment for the foreign employer, if one or more of them can (legally or de facto) enter into legally binding contracts on behalf of the employer (ie, if the employee becomes a dependent agent). A permanent establishment would trigger Spanish corporate income tax liability for the employer on the annual profits attributable to that permanent establishment.

Additionally, depending on the remote worker’s country of tax residence, the tax withholdings the company must make may significantly differ, so workers could receive a net amount higher or lower than they expected. But if the company makes lower tax withholdings than legally required, it may face administrative fines and could be obliged to pay any pending tax withholdings.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Article 4 of the Law on Remote Working provides equal rights for remote and on-site workers, so they receive equal pay and are entitled to the same schedule, breaks and work-life balance, and they are expressly included in equality plans and harassment prevention protocols.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

No, they cannot require it. Indeed, employers are not even permitted to ask their employees whether they are vaccinated.

This is personal health data, which is a special category of personal data under article 9 of the GDPR, and its processing is subject to stricter requirements than ordinary personal data.

As such information is not necessary for carrying out the employee’s obligations under the employment contract, and there is no legal authorisation for employers to process such data, employers cannot ask for this information and, if employees voluntarily provide it, employers cannot implement any measure for employees based on it. If employers implement any such measure, it could be deemed null, as it could be seen as a retaliation against the right to refuse vaccination.

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

The employer may face administrative fines for breaching obligations on labour law and personal data:

  • by hiring only vaccinated individuals, the employer’s decision could be considered discrimination against individuals who decide not to get the vaccine; and
  • by asking job applicants whether they are vaccinated, the employer could breach the regulations on personal data. As this is data concerning health, it is a special category of personal data under the GDPR, and its processing is prohibited except in specific cases, which would not apply in this case.

Any of these actions is a very serious breach, leading to labour-related administrative fines ranging from €6,251 to €187,515 (as of 1 October 2021, from €7,501 to €225,018). Additionally, the employer may face administrative fines for breaching the GDPR.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

No, there are not.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

As mentioned, any information concerning health is a special category of personal data, whose processing is limited under specific circumstances.

The law does not entitle employers to ask employees whether they are vaccinated. Processing personal health data must comply with article 22 of Law 31/1995, on occupational risk prevention, which means that:

  • in general terms, employers cannot use personal data on employees’ health for discriminatory purposes or to the detriment of any employees;
  • access to employees’ personal medical information will be limited to medical personnel and health authorities that monitor the health of workers, and providing such information to an employer or other personnel without the express consent of the worker is prohibited; but
  • employers and those responsible for health and safety will be informed of the conclusions of any check-ups to determine the workers’ ability to perform their job or the need to introduce or improve protection and prevention measures, so that they can properly carry out their preventive functions.

Based on this and the fact that there are no different regulations on covid-19 prevention based on employee vaccination, employers do not have access to vaccination information unless employees freely give their consent.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Articles 15 and 16 of the Law on Remote Working provide that remote workers are entitled to appropriate health and safety conditions in the workplace, and that risk assessment and prevention planning should consider the specific risks of remote working, in particular, psychosocial, ergonomic and organisational factors.

The Law on Remote Working refers especially to labour conditions such as working-time distribution, employee availability, rest time and the right to disconnect to be considered for occupational risks purposes.

Indeed, article 18 of that Law provides that remote workers are entitled to digital disconnection outside their working hours, which means that the employer must have in place an internal policy on the right to disconnect, and training and awareness action on the reasonable use of technological tools to prevent computer fatigue. Before implementing this internal policy, employers must consult with workers’ representatives.

Collective bargaining agreements may further develop this right.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

During the pandemic, employers’ obligations on health and safety were limited to issues referred to in question 7. Employers also must inform health authorities in the event of covid-19 positives among their staff.

Additionally, article 5 of Royal Law-Decree 8/2020 provides that the risk assessment obligation towards remote workers due to the pandemic would be met through employees’ voluntary self-assessment.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Yes. Firstly, mobile workers do not necessarily fall within the remote-work regulations.

Under Spanish law, remote workers are those who regularly provide their services from home or from wherever they freely decide, as long as that involves at least 30% of their working hours within a three-month period.

On the other hand, mobile workers are those who regularly provide their services from different places, depending on the company’s clients or needs.

Since remote workers mostly work from home, employers’ health and safety obligations should focus on their workspace.

For mobile workers, however, employers’ health and safety obligations should focus on additional circumstances, such as driving or using a mobile phone while working.

Therefore, there is a difference considering the way they provide their services.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Employers may be responsible for mental health and wellbeing, and this is an issue on which the Labour Inspectorate’s focus is increasing considerably.

This responsibility would mainly depend on the actions the employer takes (and can prove), in particular, implementing a risk-assessment and prevention activity plan (including information and training sessions) and certain policies and their implementation.

In other words, companies should act proactively to prevent situations that may harm employees’ mental health.

If employers can prove they have complied with these obligations, the risk of being responsible for remote workers’ mental health and wellbeing decreases significantly.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Since March 2020, under article 2 Royal Law-Decree 9/2020, employers cannot dismiss employees because of the covid-19 situation, and it is assumed that any dismissal since then is due to the pandemic. This means that employers must have strong reasons to justify dismissals to avoid them being somehow associated with covid-19. This prohibition is still in force.

The law does not specify whether breaching this prohibition should lead to the dismissal being deemed null or unfair. This has resulted in dissimilar high court resolutions: on the one hand, some have deemed dismissals null (forcing the employer to reinstate the worker and pay accrued salaries since the dismissal); and, on the other hand, some resolutions have deemed dismissals unfair (the employer can choose to pay severance for unfair dismissal or reinstate the employee and pay the salaries accrued since the dismissal). Until the Supreme Court rules on this matter, the consequences of breaching this prohibition are not clear.

Unlike dismissals, no other regulations specifically limit or prevent employers from changing employees’ labour conditions due to covid-19. Therefore, to implement any changes, employers should follow the ordinary procedure, which consists of justifying the change on business-related grounds and, if the decision affects at least 10 employees in companies employing less than 100 people; 10% of employees in companies employing between 100 and 300 people; or 30 employees in companies employing more than 300 people, then they must schedule a 15-day negotiation period with the workers’ representatives, although it is not mandatory to reach an agreement.

Most companies, however, have not made changes to their staff’s labour conditions, except for contract suspensions or recoverable paid leave.

Additionally, the government has passed several regulations since March 2020 (eg, Royal Law-Decrees 8/2020, 24/2020, 30/2020, 2/2021 and 11/2021) to provide specific and easier temporary contract suspensions for force majeure due to covid. These new regulations have mainly eased the ordinary procedure on temporary contract suspensions, and they have also allowed certain companies to obtain social security exemptions or reductions, subject to their commitment to not dismiss any employees whose contracts were suspended for six months after they resume work.

The Spanish government also passed Royal Law-Decree 10/2020, entitling certain employees to a recoverable paid leave between 30 March and 9 April 2020, which was the worst period of the pandemic. Workers were exempt from working without any impact on their salary, but they had to make up that time between the end of the state of alert and the end of the year.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Article 19 of the Law on Remote Working provides that there should be no difference between remote and on-site workers regarding collective and representative rights.

Employers must provide workers’ representatives with the required elements to properly carry out their activities, including access to communications and email addresses and a digital bulletin board.

They must ensure that there are no communication hurdles between remote workers and their legal representatives and that remote workers can effectively participate in activities organised by their legal representatives, especially exercising their right to vote in the workers’ representatives on-site elections.

Apart from this, there are no differences in union rights due to employees working remotely. They are entitled to be informed or consulted, depending on the matter, before implementing decisions to check that the employer is complying with the applicable labour regulations.

In particular, employers must provide the works council with a copy of remote-work agreements and notify them of any change to such contracts.

Employers must also inform the works council and remote workers about on-site vacancies, as remote workers have priority over external candidates when vacancies arise.

The works council can challenge before the labour inspectorate or the courts any company decision that breaches labour regulations, regardless of whether it affects remote workers or not.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

As mentioned before, employers must provide the works council with a copy of the remote-work agreements and notify them of any change to such contracts. They are only entitled to share their opinions on the contract and the labour conditions with the employer. But the works council cannot change a remote-working agreement, unless they challenge the decision and a court grants it.

Last updated on 21/09/2021