What should I do if an employee asks me to remote work from abroad?
An employee requests a reduction in working hours for legal guardianship and tells you that he wants to move to another country and remote work from there for family reasons. Are you obliged to recognise his telecommuting?
REDUCTION IN WORKING HOURS
Ask to work Fewer hours
If your employee asks for a reduction in working hours due to legal guardianship, he/she may work fewer hours, with a proportional reduction in salary, for a certain period of time (depending on the age or situation of the person for whom he/she is caring).
Among other cases, the employee may request a reduction in working hours for legal guardianship for the direct care of a minor up to 12 years of age (biological child, adopted child or minor in simple (i.e. temporary), permanent or pre-adoptive foster care).
Prior notice
The worker must give at least 15 days’ notice (or as determined in the applicable collective bargaining agreement), specifying the start and end date of the reduction in working hours, as well as the new working hours.
And you can ask him/her to prove that he/she meets the requirements for the request (for example, with the family record book -to prove the existence of a child under 12 years of age-, with a medical certificate attesting to the incapacity of a family member…).
You must accept
If the cause justifying the reduction exists, you cannot refuse to grant it (even if you are the only worker in a certain position in the company). In order to cover the hours that the employee is no longer working, he/she may use the interim contract.
It can only be refused if two or more employees of the company request the reduction for the care of the same person.
Specification of hours
As mentioned above, it is up to the worker to specify the period of the reduction and the timetable of the new working day, which must be within his or her ordinary working day (therefore, initially, he or she cannot change shifts).
If the worker specifies the reduction within the ordinary working day, you must accept it.
Remote work from abroad
Remote work
The type of service provided (in person or remotely) is not an element of the timetable for the reduction in working hours. Thus, if, together with the request for a reduction in working hours for legal guardianship, your employee asks you to telework, you should not grant it in the first instance.
The worker may only request such a measure:
Through an adaptation for reasons of reconciliation of work and family life, which – unlike the reduction – is not an absolute right of the employee, not even when he/she has children under 12 years of age in his/her care (in case of disagreement you must open a 15-day negotiation period with him/her; but, if you justify it, you can refuse his/her request).
By means of an ordinary application. Teleworking is voluntary for both employer and employee and cannot be imposed unilaterally by either party.
Sanction
If an employee decides not to report to the workplace because he/she considers that he/she is required to work remotely, without this having been expressly agreed with the company, the company may impose disciplinary sanctions for absenteeism, or even dismissal (depending on the number of days of absence required by the collective agreement).
Actual case
A court has declared the dismissal of a worker who requested a reduction in her working hours to care for her child and asked to work remotely from Mexico (where she had recently established her family home) to be fair.
The company was under no obligation to accept the worker’s request and repeatedly asked her to return to work in person, but received no response.
Even if, together with a request for a reduction in working hours for legal guardianship, the employee asks you to work remotely, you are not obliged to grant him remote working. Nor is he obliged to accept the reduction in working hours if he does not include it in his normal working day.
