Moving to another province during a pandemic does not oblige the company to accept teleworking

During the pandemic you allowed teleworking with a change of residence for one of your employees and now you are required to continue teleworking? In this article we analyse this situation and tell you what a recent Judgment of the Social Court of Oviedo says.

According to data from the International Labour Organisation (ILO), as a consequence of the confinement directives decreed by governments, 4 out of 10 employees in Europe started teleworking. A large number of workers changed their residence for various reasons and continued to telework. Now that the pandemic is over, questions arise for companies: has there been an acquired right for employees who have moved to continue teleworking, can the company be obliged to respect this situation?

Regulation of the Workers’ Statute on the adaptation of the working day

The basis for requesting the continuation of teleworking can be found in the regulation of Article 34.8 of the Workers’ Statute. The aforementioned article states the following:

Workers have the right to request adaptations in the length and distribution of the working day, in the organisation of working time and in the manner in which it is provided, including the provision of their work remotely, in order to give effect to their right to reconcile work and family life. Such adaptations shall be reasonable and proportionate in relation to the needs of the worker and to the organisational or production needs of the undertaking. (…)

On the basis of this regulation, it follows that an employee may request teleworking from his employer as long as the measure is reasonable in relation to his needs and those of the employer.

What does the latest ruling of the Social Court of Oviedo say?

In the case analysed by the judgment of the Social Court of Oviedo Section: 5 of 29 March 2023, a female employee requested permanent teleworking. The employee had changed her place of residence to León, without notifying the company (which is based in Oviedo), in order to be close to her partner’s work and to be able to take care of her daughter. The company rejects the situation and claims that this is an exceptional situation and proposes to the employee that she telework until the end of her daughter’s schooling that year and then do 40% telework and 60% face-to-face work.

The Oviedo court considers that the company cannot be obliged to maintain teleworking as it was adopted as an exceptional measure and the company offered an alternative so that the employee could telework part of the time. Furthermore, it considers that the decision to move her residence to another province was taken unilaterally by the employee.

The court therefore rejects the employee’s request to continue teleworking 100% of the working day.

In the same sense, judgement 80/2023 of 2 March 2023, rec. 44/2023 of the Social Court No. 1 of Vigo, which considered that the right to reconcile work and family life is not absolute, was pronounced in the same sense.

Ultimately, if your employees request to continue teleworking, you need to consult with expert employment lawyers who will analyse the law and recent case law to advise you