Spain

1. Impact of Covid-19 on remote working

It is likely that the measures taken at the end of 2020 to combat the second wave of Covid will continue in the first months of 2021. However, we are confident that the availability of a vaccine, together with more intensive use of rapid tests, will allow the pandemic to be kept under control without having to resort to such restrictive measures as those imposed so far. In this context, attention to the different aspects of teleworking has been accelerated.

The establishment of labour rights for employees working remotely include doing so on a voluntary basis, reversibility, equality, breaks and digital disconnection. These new regulations are novel and unprecedented and we anticipate application problems and continuous questioning.

Good proof is the issue around expenses. The regulation does not specify what is considered as an “expense”, or what happens if an agreement is not reached on its setting. Nor does it set out clear tax criteria - implying an additional headache for companies - and a possible increase in withholding taxes for employees.

Empowering employees to manage their working hours and location flexibly will definitely be the most powerful competitive advantage of the employee value proposition, although the conflict arises as to how to reconcile the regime set out in Article 34.8 of the Spanish Workers’ Statute with the right to labour flexibilization.

2. Other impact of Covid-19 on employment

We expect to see new measures regarding the extension of the ban on dismissals, and the introduction of new mechanisms of employment protection such as the granting of special benefits of an extraordinary nature for the unemployed who ended their benefits during the past State of Alarm period.

The labour market will gradually recover in 2021, although policies in the field of employment will have to accompany this recovery to prevent the most affected industries by the pandemic - tourism, leisure, hotels and restaurants - from leaving deep scars.

The draft General State Budget that has been recently approved in our Congress foresees an increase of 20.1% in spending on unemployment policies. Aid and support measures for those most affected by the new restrictions must be maintained and training must be promoted for workers undergoing temporary employment regulation (i.e. furlough), and in view of our growth and unemployment forecasts, we must continue to develop inclusive policies that will allow recovery to reach everyone.

Thus, furlough will still be an important tool in the first half of 2021, although in a more selective and temporary way than in 2020. The extension of force majeure furlough, due to expire on 31 January, is still a crucial issue for employers.

3. Plans for equality and equal pay

Beyond the abundant regulations linked to the pandemic, equality is once again a new challenge of legal compliance for companies, in the labour field. This is not a new issue, since for years Spain has been trying to make effective the right to equal treatment and opportunities between women and men "in any area of life".

The measures and obligations in order to guarantee such equality in the field of employment aimed, in turn, at avoiding any type of employment discrimination between women and men, and promoting working conditions that avoid sexual and gender-based harassment, together with its prevention procedures and channel for complaints, are the subject of the recent Royal Decree-Laws approved by the Government, as well as the justification for the wage gap.

Over time, the threshold of workers that a company must have in order to be required to implement an Equality Plan has been progressively lowered, until it reaches those with a minimum of 50 workers as from the entry into force of the aforementioned Royal Decree in January 2021, although it establishes a transitional period to carry out the negotiation within one year.

In turn, the issue of Equal Pay between women and men has been regulated with a series of measures that companies must implement six months after its publication and which arises from the need to specify the aspects necessary for companies to comply. In this sense, all companies should be complying with the new obligations to establish a remuneration register for all their staff, including management or senior officials, which is set for 14 April 2021. This register should include the average values of salaries, salary supplements and extra-salary payments for all staff for information purposes.

4. Overtime and working time regulations

On this subject, which was a hot topic prior to the pandemic, all companies were already required to record employees' working hours. With regard to remote working, the new regulation on this subject includes the right to flexible working hours and establishes that the person working in this way may alter the hours of service provision and establish a time record that "faithfully" reflects the time spent.

Within the requirement to set the working hours of any given employee, within it, where appropriate, must be established rules of availability, the percentage and distribution between face-to-face work and remote work where appropriate, and should be set if both types of internal and external activity are compatible at the time of signature.

In this context, it should be noted that the right to digital switch-off is included, as is the power of workers to remain outside the digital reach of their company outside the legally or conventionally established working time. The aim is to prevent digital control over the remote worker and particularly over the teleworker, from making it difficult or impossible to reconcile personal, family and professional life.

5. Family employment law changes

Since last year, family co-responsibility has been encouraged, leading to a series of reforms in this area, in accordance with the recommendations of the European Parliament and Council Directive 2019/1158, which it seems will be fully implemented in 2021. From 1 January 2021, for the first time in Spain, leave for birth and childcare will be equalised.

Specifically, the duration of the rights of both parents will be equated to 16 weeks’ leave, with a gradual application in the paternity leave, enjoying the same period of suspension of the employment contract, of which 6 weeks of this will be mandatory for each of them.

The new regulation incorporates 49 measures to equalise treatment and opportunities in employment and occupation between men and women, including the intention to ensure that there are no distinctions on the basis of gender in the care of newborn or adopted children. Thus, in addition to the increase in paternity leave, there will be further developments on the distribution of leave among parents, such as flexible working arrangements, extensions in certain cases.

The aim of this extension of parental leave is to improve reconciliation between parents and to try to reduce the discrimination in employment associated with motherhood. It seems that 2021 will be the year when the period of equalisation of this right for both parents will come to an end, and significant progress has been made.

In this sense, special protection against dismissal is granted to workers, where the termination of the employment contract is not possible until more than 12 months have elapsed from the date of birth, adoption or fostering of the child (previously 9 months; extended by legal reform).