Spain: Alteration of Job Modality ruled a Substantial Modification that Exceeds the Company’s Capacities

According to the judgment of the Superior Court of Justice of Catalonia of 31 March 2021 (rec. 5061/2020), the obligation to work exclusively in person, when the work was previously carried out, at least partially, remotely, must be qualified as a substantial modification that exceeds the company’s capacities.

Due to the current health crisis, many companies have chosen to let their employees work from home. Meaning that, the trend or preference to work from home has not only affected employees who worked in the company before COVID-19 started, but also employees who have started a new employment relationship during this situation.

In this specific ruling, the issue at stake arises due to the employee’s temporary disability situation. As a consequence of the disability, the company argues that the worker can no longer carry out the same tasks as before, and that the new assigned tasks require a change in his job modality. Primarily because the company claims that the new tasks that have been given to the employee can only be done in the company’s actual place of work.

However, the change becomes a real legal problem because in this particular case, the company does not have an actual reason in order to follow through with this action and change the tasks and job modality of the employee. According to Article 41 of the Worker’s Statue, which is the legal stipulation that actually foresees the possibility for a Company to change the main working conditions of their employees, such modifications need to be based in either an economic, technical, organisational or productive cause.

The ruling considered that in this case, the company has not been able to prove that the modifications that has been carried out was well-founded. The Court, states that the unilateral decision to reorganise a department or office does not qualify as a substantial modification of working conditions. It is rather a decision solely based on the simple will or convenience of the company, and not on a real business necessity.

The court finally explains that there is no possible doubt regarding the substantial nature of the action taken by the company. Mainly because the way in which he has been working for the past years, has now been radically changed to another.

Taking all of the above into consideration, the recent judgment of the Superior Court of Justice of Catalonia of 31 March 2021 found that if the company decides to change the working conditions of an employee, from remote working to working exclusively face-to-face, it will be considered a substantial modification of the working conditions, and therefore, it cannot be done unilaterally by the Company.

Key Action Points for Human Resources and In-house Counsel 

From now on, companies will need to pay special attention to the reasons that they provide to the employee with, in case of modifying the job modality from remote to face-to-face.