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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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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, teleworking was used rather infrequently, and most Portuguese employers were not prepared – namely in terms of technology and data storage – to suddenly have their workforce almost entirely and permanently working from home or remotely.

For those reasons, teleworking mainly raised – and continues to raise – concerns regarding the employer’s capacity to ensure that information is protected and that it stays confidential despite being remotely accessed and processed. Remote working enhances security vulnerabilities, which can lead to data breaches.

We would also like to highlight the use of technological solutions that, on one hand, allow employers to exercise their powers of management and control over work performance, but that, on the other, do not violate the general rule prohibiting the use of remote surveillance to control employees' professional performances, or that do not cause excessive restrictions on employees’ private lives.

Last updated on 13/07/2022

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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

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Teleworking employees have the same rights and obligations as any other employees, which implies that no reduction in salaries or benefits is admissible, in principle. Under Portuguese labour law, employers cannot reduce basic remuneration unless there is a demotion, which must be, in any case, expressly authorised by both the employee and the Authority for Working Conditions (ACT).

Reducing or cancelling any other payments to remote workers would be deemed discriminatory, and therefore illegal, except for situations where valid grounds could justify it.

Moreover, concerning reducing or suppressing benefits, the fact that benefits have been granted regularly over the years may lead to their qualification as acquired rights of the employees and part of employees’ remuneration, which would mean restrictions on the termination, reduction or alteration of such payments.

During the beginning of the covid-19 pandemic, there was debate over whether employees were still entitled to a meal allowance if they were teleworking, since the cause for payment would cease to exist (ie, employees would no longer be forced to spend money on out-of-home meals). However, the government clarified that, under the special compulsory teleworking regime (whenever the nature of the functions being performed was compatible with it), employees retain the right to a meal allowance, based on the principle of equal rights for on-site employees and teleworkers. It is now fairly and widely accepted that such meal allowances cannot be withdrawn based on the circumstances of teleworking employees.

Last updated on 13/07/2022

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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