Is mobility valid in the company if it is possible to telework?
Can the company resort to geographic mobility if it is possible to telecommute? The concept of geographical mobility is regulated in the Workers' Statute, and is the transfer of workers who have not been specifically hired to provide their services. Our labor lawyers explain everything you need to know about geographic mobility.
After the health crisis, teleworking has gained ground in Spanish companies. After all, many workplaces have had to remain closed, and preventive measures have prevented many people from going to work.
As a consequence, the provision of remote work has become more common. Working people have become accustomed to using ICTs and some companies have been able to cut structural costs by exploiting these tools.
But the situation has not been favorable for all companies. Some of them have had organizational problems, and new legal doubts have arisen that no one had raised in the previous scenario.
In this case, we are going to analyze one of the questions recently put on the table: can the company resort to geographic mobility if it is possible to telework?
Brief summary and referral: geographic mobility
To understand the question, it is convenient to know the concept of geographical mobility. This is defined in the Workers' Statute as:
"The transfer of workers who have not been specifically hired to provide their services in companies with mobile or itinerant work centers to a different work center of the same company that requires changes of residence."
We are, therefore, before a figure that is only applicable to working people attached to an immobile center. This is important, because it turns the transfer into a substantial change in working conditions.
Precisely for this reason, the Workers' Statute establishes a series of guarantees in favor of the affected person.
First, it requires economic, technical, organizational or production reasons to justify mobility. That is, it is a right of the company, but a causal right, which cannot be exercised by its mere will.
It is also required that both the affected persons and their legal representatives be notified at least 30 days in advance.
Once the notification has been made, the affected person has the right to accept the transfer or to terminate their employment contract, with compensation equivalent to that of the objective dismissal.
For more information on the matter, see our entry on compensation for workplace transfer.
In summary, geographical mobility allows the company to change work centers to people assigned to permanent positions, provided there are justifying causes. Likewise, the designated person may accept the decision of the company or terminate their contract, with the right to compensation. In this way, the Workers' Statute tries to coordinate freedom of enterprise with the protection of workers.
New scenario: teleworking
The Workers' Statute is alien to the new ways of providing services. In particular, teleworking was a marginal concept at the time of its approval and subsequent reforms, so it does not contain provisions adapted to current times.
Law 10/2021, on distance work, tried to fill these gaps. In its own explanatory memorandum, it refers on sixteen occasions to the containment and prevention of COVID-19, so the influence that the health situation had on this regulation is undeniable.
Apart from the legal implications of this new teleworking regime, which are not the subject of this article, the truth is that the regulation was approved at a time when it was more than necessary. Many companies moved their staff to their respective homes, moving to a remote work system.
However, the aforementioned regulation advocates a voluntary teleworking system, where the agreement with the affected people and with their legal representation is key. An agreement that promises not to be peaceful at all times and that brings new legal debates to the fore, such as the one described below.
If you can telecommute, geographic mobility may not be valid
We start from the example of STSJ GAL 2358/2021. In this case, based on organizational reasons, the company tries to move an administrative assistant to another municipality. Given the nature of the worker's tasks and the fact that she has a teleworking protocol, she considers that travel is not necessary. And the sentence of instance and supplication coincide with it.
This pronouncement opens a new scenario for the justification of geographic mobility. Although until now it was not necessary to prove the suitability of the displacement, but only its necessity, now the affected people find a new reason for opposition. At least in cases where, like the one analyzed, two requirements are met:
1.- That the work can be carried out remotely.
2.- And that the company has a teleworking protocol.
It is true that the Judgment only opens a doctrinal line, which will not necessarily be consolidated as jurisprudence. But it is also true that the aforementioned Judgment offers a new reason for opposition to geographical mobility related to the state of technology, which allows the provision of services electronically.
Implications of teleworking in the new labor relations
Note that, although we have referred to Law 10/2021, STSJ GAL 2358/2021 does not. In other words, this new legal paradigm opens de facto, and not because of a legislative reform.
This implies that new technologies and teleworking, a new way of providing services to which our companies and our Legal System are not fully used, will change the traditional way of understanding labor rights and business powers.
That is why it is important that companies and workers have specialized legal assistance before initiating relevant actions for their employment relationship.
Contact us, and our lawyers specializing in labour law will study your specific case. We Have:
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