Spain: The Return to on-site Work post-COVID does not Imply a Substantial Modification of Working Conditions
After the state of alarm has ended and the restrictions preventing workers from carrying out their duties at the workplace have finished, the employer may order a return to on-site work, which does not imply a substantial modification of working conditions, but rather a manifestation of the employer’s power of management. Therefore, there is no obligation to negotiate the measure with the Workers’ Representatives and this does not imply a violation of the right to freedom of association.
The defendant company and the trade union representatives filed an appeal in cassation before the Supreme Court, against the judgment of the Social Chamber of the High Court of Justice of the Basque Country, which had upheld the claim of the workers’ representatives insofar as it stated that the return to on-site work had to be previously negotiated, as it was a substantial modification of working conditions; while also rejecting the argument of the trade union with regard to the impact on the workers’ right to physical integrity. As a result, the respondent company requested that the claim be dismissed entirely and the trade union requested that the damage to the physical integrity of the workers be recognised.
On 8 May 2020, the employer sent a communication to the workers concerning the general return to on-site work, accompanied by preventive measures to avoid overcrowding and risks of infection, to which the workers’ representatives objected and then sued the employer for allegedly infringing their right to freedom of association and physical integrity.
In the Court’s opinion, the purpose of the return to on-site work is not to alter the ordinary work regime, but to reinstate the normal working conditions (pre COVID-19) that governed the employment contract from the outset, since, if the employer unilaterally modified that regime to introduce teleworking, it was because of the state of alarm ordered by the Government. In that sense, if the employer did not require any prior agreement with the workers in order to introduce teleworking, since it was an extraordinary situation, it should not be required in order to return to that regime. Therefore, the company’s actions do not imply any harm to the workers’ right to freedom of association.
With regard to the violation of the right to integrity, the Court pointed out that there is no evidence to show that the conditions set by the company for the return to on-site activities, could cause damage to the integrity of the workers; thus rejecting this point.
Key Action Points for Human Resources and In-house Counsel
In conclusion, the return to on-site activities does not imply a substantial modification of working conditions and therefore, the employer is not required to comply with the provisions of article 41 of the Workers’ Statute and negotiate with the trade unions for such a modification, as this decision was taken with the aim of re-establishing the usual labour regime, altered due to the state of alarm decreed by the Government in response to the COVID-19 pandemic.