Can senior executives work remotely from outside their home? This is what the Supreme Court says

Are you a senior executive and want to work from somewhere other than your home? This will interest you. As you may already know, senior executives in companies are subject to a special employment regime established by the Law regulating the special employment relationship of senior management personnel. In relation to this group, questions arise regarding the possibility of working remotely from outside their usual residence. In this article, we analyse what the law says and the conclusion reached by the Supreme Court in a recent ruling on this matter.

What is the regulation of remote work?

Article 13 of the Workers’ Statute establishes that employees may perform remote work under the terms set out in the Remote Work Act.

The Remote Work Act, when defining what remote work consists of, states that it is a form of work organisation whereby the service is carried out at the employee’s home or at a place chosen by them, for all or part of their working day on a regular basis.

It also defines teleworking as remote work carried out exclusively or predominantly through the use of IT, telematic and telecommunications systems.

Furthermore, Article 7 of the same Act establishes, as basic content of the remote work agreement, the definition of the workplace chosen by the employee.

Therefore, it is usual for there to be an agreement with the employee to establish the workplace, which typically coincides with their usual residence. However, collective agreements and some contracts provide for more flexible conditions, allowing work outside the usual residence during periods such as Christmas or the summer.

What is the usual place of work in remote work?

The Court of Justice of the European Union has defined the usual place of work as the place where the employee primarily carries out their obligations towards the company they work for.

Most commonly, the place of telework is the employee’s home, but there may also be cases where work is carried out in a co-working space, in which case that would be considered the workplace. However, there are situations in which determining the workplace becomes more complex, for example where the employee provides services to several client companies of their own employer. In such cases, it is generally understood that the workplace is the establishment of the company that has hired the employee.

Can the place of telework be changed?

It depends on what has been agreed with the company. If the employee wishes to make a change, they must notify their employer, even if it is only a temporary change. This is important from an occupational risk prevention perspective.

In addition, the company may be able to determine, through various technologies, where you are working from, so it is essential to be transparent and communicate any change of location.

The content of senior management contracts

Senior management personnel are considered a special employment relationship under the Workers’ Statute and are governed by specific regulations.

Firstly, it is important to understand what is considered senior management personnel. According to the law regulating this category of workers, they are those who exercise powers inherent to the company and related to its general objectives, with autonomy and full responsibility, limited only by the direct instructions of the governing or administrative bodies or persons of the entity.

The law relating to senior management personnel establishes that the contract with such personnel must contain minimum elements, including the identification of the parties, the subject matter of the contract, the agreed remuneration, the duration of the contract and any other clauses established by law.

Therefore, senior management contracts are subject to a different legal regime.

Can senior executives work remotely from outside their home?

The Supreme Court has examined a case in which senior executives of a company were allowed to work remotely from outside their usual residence during the summer and at Christmas. In this case, the Supreme Court analysed whether there was discrimination within the company due to unequal treatment between staff covered by a collective agreement, who were not given the option to work remotely from outside their homes, and senior management personnel, to whom the special regulations mentioned above apply.

In this case, senior executives were allowed to work remotely from 1 July to 31 August and from 24 December to 5 January, while the rest of the employees, subject to the collective agreement, did not have this option. The trade unions considered that this amounted to discrimination against employees covered by the collective agreement.

However, initially the National Court, and subsequently the Supreme Court, held that the collective agreement itself already recognised the existence of these different groups of employees: those subject to the scope of the collective agreement and those excluded from it, such as senior management personnel.

In this case, the courts found that there was no discrimination, since the difference in treatment was not arbitrary but justified.

In conclusion, remote work is possible both for employees covered by a collective agreement and for senior management personnel. There may be differences in treatment based on the distinct regulation applicable to this category of personnel under the special law, and it is possible to agree that they may work remotely from outside their usual residence.

If you are a senior executive and have questions about your contract, do not hesitate to contact our team of employment lawyers specialising in senior management contracts to resolve your queries and receive tailored advice.