12.1 Remote Working: Delimitation of the Conceptual Framework and Applicable Occupational Safety and Health Legislation
The possibilities opened up by telecommuting have raised important challenges for labour law, affecting some of its essential institutions. In general, the provision of work as an employee has been attached to a certain place of work which, from time to time, could change, but served as a fundamental basis for determining the applicable legislation and the rest of the working conditions. This certainty provided by the existence of a regular, physical place of work has been challenged by the possibilities opened up by technology and the spread of teleworking. The lack of a more or less stable physical place of work highlights the difficulty of adapting legislation designed to provide a response to regular work, attached to a fixed workplace. In addition, in the international nature of the service, the very bases of international conflict rules are overwhelmed by the need to respond to a reality that until recently was unimaginable.
On the other hand, transnational remote work can take many different forms, and there is a wide range of remote working practices, not always homogeneous (V.A. 2021; Garicano & Alonso De Armiño Rodríguez Reference Garicano and Alonso De Armiño Rodríguez2021).
In an effort to summarise, the following forms of remote work can be identified according to their duration, whether they are voluntary, whether to its original or supervening nature or whether there is certainty as to where services are provided:
A worker could initially be recruited in one company is posted on a temporary basis to provide services in another country and that a large part of the service is provided by remote means in the country of posting.
It is the employee himself who may decide to work remotely and asks the employer, on either a temporary or a permanent basis, to provide services remotely in a third country.
The case could also be that the service is provided in different countries and that even the country and the time from which the service is to be provided is not known precisely. In this case, it could be that the choice for mobility is made by the worker himself or that it responds to the needs of the company.
As far as we are concerned here, the question that arises is what the protection in terms of occupational risk prevention should be for these workers who provide their services remotely and with an element of internationality. In order to address this question, it is essential to first determine which legislation is applicable to the contract, unless a common legislative framework on the matter is adopted at European or international level, as will be seen later.
To determine the law applicable to the contract, the starting point is the Rome I RegulationFootnote 1, which in Article 8 sets out the conflict rules to be applied to employment contracts and begins by referring to the general rule laid down in Article 3, according to which the contract is governed by the law freely chosen by the parties. However, the Regulation then qualifies that the application of the chosen law cannot deprive the employee of the application of the rules ‘which cannot be excluded by agreement’ and which would have been applicable in the absence of an agreement.
The following paragraphs of Art. 8 set out the rules applicable in the absence of an agreement. Firstly, according to Art. 8(2), the following shall apply: ‘the law of the place in the country in which or, failing that, from which the worker, in performance of the contract, habitually carries out his work’. The application of the lex loci laboris is thus enshrined as a general rule. With regard to the habitual place of provision of services, the Regulation states that the temporary provision of services in another country does not imply a change of the habitual place of provision of services, as will be seen later. However, there are cases in which it will be difficult to determine the habitual place of work.
For those cases in which the habitual place of provision of services cannot be determined, Article 8.3 of the Regulation states that the law of the establishment through which the worker has been recruited shall apply. The lex loci delegation is therefore introduced as a subsidiary criterion.
However, the regulation is completed by a final escape clause, contained in Art. 8.4, according to which, when it is clear from all the circumstances that the contract is more closely connected with a law other than the place of provision of services or the place of establishment, the law of that other country more directly related to the contract shall apply.
The principle of territoriality is at the heart of the Rome Regulation. The aim is to identify a place to which the provision of services can be assigned, giving priority to the place where the services are habitually provided and using other additional rules. However, there are occasions, beyond remote working, where it is not easy to identify the place of the habitual place of provision of services, such as in cases of multi-location contracts. When the European Court of Justice has had to clarify these conflicting cases concerning the place of provision of services, the CJEU, by all means, tries to seek a habitual place of provision of services in which to locate the provision of services and which prevents the next connecting factor, that of the establishment of the contract, from coming into play. It is not clear, however, what the criteria should be for determining this habitual place of supply of services. Thus, in the judgment of 15 March 2011, Heiko Koelzsch and État du Grand-Duché de Luxembourg, Case C-29/10, the Court seems to focus primarily on the place where most of the work is carried out, but in the judgment of 15 December 2011, Jan Voogsgeerd v Navimer SA, Case C-384/10, seems to grant greater importance to other qualitative elements, such as the place where the activity is mainly carried out. The situation becomes even more complicated when it comes to differentiating between the usual place of provision of services and the place with which the work is most closely connected (Fontinopoulou Basurko Reference Fontinopoulou Basurko2006).
These difficulties in determining the applicable law have led to solutions being proposed specifically for international remote work, which seek to delimit the place of provision of services for the purpose of identifying the applicable social security system.
Thus, the European Commission, through its Administrative Commission for the Coordination of Social Security Systems, has issued a guidance note for the application of the regulations on social security coordination No 883/2004 and No 987/2009. The note, which is not binding, provides for certain exceptions to the application of the law of the place of the habitual provision of services in cases of international teleworkFootnote 2.
In the domestic sphere, Law 28/2022, of 21 December, on the promotion of the start-up ecosystem, for the first time contemplates the situation and residence of international teleworkers, who work in Spain for companies based abroad.
These are, as can be seen, laudable initiatives which attempt to respond to imminent problems, but which may not be sufficient to provide a full response to the challenges posed by international telework. On the other hand, efforts seem to be focused on trying to find also in international remote work a usual place of provision of services; although, as some scholars have warned, the very characterisation of international telework may clash with such a strict conception of the place of provision of services and its consequent effects on the determination of the applicable law (Moreno Márquez Reference Moreno Márquez2005).
It is perhaps for this reason that it is necessary to remove the classic schemes of defining working conditions after choosing the applicable law, especially in the most extreme cases of absolute lack of definition of the place of work and, even more so, in those cases in which the place of provision of services may be indifferent.
However, if a possible regulatory review of the conflict rules is undertaken, the various interests at stake and the workers’ protection needs must be taken into account. Sometimes transnational service provision is a response to a company’s need to meet a particular demand abroad, but it should also be borne in mind that these forms of nomadic work are sometimes used in order to avoid the application of stricter national rules, known as social dumping. Apart from this, it should be taken into account that the protection of workers in terms of prevention is one of the basic conditions for ensuring decent work. In fact, both at EU level and in the framework of the ILO, occupational safety and health has been a subject on which it has been possible to agree a common regulatory framework.
The question at this point is whether, perhaps, from a substantive point of view, the preventive regulation of remote workers within an international context could be susceptible to a minimum regulation that would specifically attend to the peculiarities of this type of provision and to some conditioning factors, which will be referred to later, that may make it difficult to apply the existing preventive regulations, since they also start from a model based on the physical workplace as the place of provision.
Two basic conclusions can be drawn from the foregoing: the first is that the rules of conflict for the determination of the applicable law need to be revised to try to respond to the problems raised by international telework, especially in those cases where the place of provision of services is completely undefined; the second conclusion is that perhaps, also from a substantive point of view, a revision of the preventive obligations is necessary, in order to take into account the particularities of this type of work and to accommodate to this new virtual obligations that have traditionally been based on the workplace as the physical place.
On the basis of this briefly described reality, the options that could be considered are the following
1. To make a conceptual approach to the different forms of international remote service provision, in order to differentiate those in which, despite the fact that the work is provided remotely, there is a clear and stable element to determine the applicable law. In this sense, for example, where temporary service provision is envisaged, or where a minimum of physical presence at a particular workplace is required, the classic conflict rules could still apply. In cases where there are no elements that clearly allow for the identification of the applicable law, a reform of the Rome I Regulation could be considered, in order to clarify what may be the decisive elements for identifying the law applicable to remote working.
2. In keeping with the basic outline of the first option, it could be decided that, in any case, despite being able to identify a law applicable to the contract, the maximum safety standards provided in the rules applicable the maximum standards should always be required to be respected (V.A. 2021).
3. At EU level, it might be advisable to undertake specific legislation harmonising the employer’s preventive obligations with regard to workers providing remote services. Such legislation would provide a homogeneous level of safety for all EU countries and would also make it possible to accommodate current preventive regulations which, as will be seen, still rely on the physical workplace as a key element.
12.2 The Time Factor as an Occupational Hazard in Remote Working
12.2.1 Introduction
One of the main characteristics of remote work is that it allows working anytime, anywhere (Eurofound and the International Labour Office 2017), generating a resizing of the temporal and spatial element of work provision. Within the broad concept of ‘remote work’, new forms of work provision appear, such as telework, home-based work and work based on online platforms. But all of them show a common need to adapt the concepts of ‘working time’ that are currently provided for, in our case, in European and national law, as well as to create new time categories in accordance with the peculiarities of the time of provision of these forms of employment (Martín Rivera Reference Martín Rivera2022).
The central element of the whole conceptual disruption derives from the fact that working time is provided outside the workplace, either from a fixed post or in an itinerant manner.
12.2.2 Is There a Need for a Reconceptualisation of Working and Resting Times?
The first innovative and problematic element of remote working is the availability of the worker. The fact that rendering of the service can be required at any time, with a high degree of unpredictability, means that the worker is, for long periods of their daily working time, under the anticipation of having to connect and commence the actual working day, if required to do so.
The conceptual classification of these times is not an easy question to answer within the conceptual binomial between working time and rest time. The concept of working time used in Europe is determined by Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, which lays down minimum safety and health requirements for the organisation of working time. The Directive does not provide for time arrangements that fall outside either concept, so that waiting time for activation of remote workers will have to be counted as working time or rest time, and thus be subject to the maximum working time limits in the former case or become part of the mandatory minimum rest periods in the latter.
According to the Directive, working time is considered to be ‘any period during which the worker is at work, at the employer’s disposal and carrying out his activity or duties’.
This conceptualisation is constructed on the basis of work performed at a workplace on the premises of the company. However, other indicators appear, such as availability in favour of the employer and the exercise of the activity or functions, which go beyond the spatial anchorage to the workplace, and pay greater attention to the functional element, that is, the possibility that during this time the worker is required to perform the functions inherent to his or her employment contract.
On this basis, European case law has gradually defined when these times on the borderline between actual working time and rest time fall into one or the other concept. In the case of non-face-to-face time off, the CJEU has focused its decision on whether the times in question affect the employee’s freedom to move around freely and the freedom to use the time to pursue his or her private life or interestsFootnote 3.
If the times in question do not generate a limitation in their capacity to freely manage the time dedicated to their personal and social life, this time of availability will be considered as rest time, and if they do generate it, on the contrary, it will be considered as effective working time. The key elements to determine whether or not this free availability is affected are whether or not the company obliges the worker to remain in a certain, localised place, and the reaction time that the company gives the worker so that, once his or her services have been requested, the worker can start the work activityFootnote 4.
The problem with transferring this doctrine to the case of remote workers is that it is designed for situations in which the worker is required to travel to an on-site workstation for the start of the activity, once his or her services have been requested. However, for remote workers, the start of work after the call can take place from any location. At a national level, the Spanish Supreme Court has considered, in these cases, decisive the reaction time that the company allows the worker to make the connectionFootnote 5, and has considered as excluded from the concept of working time the times of availability in which the requested services can be resolved remotely (via telephone call) and would need only exceptionally need to travel to an specific workplace.
From all of the above, it is considered necessary to regulate a special working day for remote workers that regulates which times of availability will be counted as effective working time or rest time, as well as the maximum limits that a remote worker can be employed under these times. However, when giving a regulatory response, it should be borne in mind that the European Committee of Social Rights has already expressed its opposition to the view that on-call time should be regarded as ordinary rest periods, since during this time the worker does not have an absolute guarantee that there will be no business interference, thus diminishing the right to rest (Salcedo Beltrán Reference Salcedo Beltrán, García González and Regina Redinha2019).
In turn, this state of disposition and its disproportionate duration are occupational risk factors that must be taken into consideration in the corresponding occupational risk assessment, like any other occupational risk. Within the assessment of psychosocial risk factors, working time, ‘taking into account the rest periods allowed by the activity, their quantity and quality and the effect of working time on social life’, and the workload, both quantitatively and qualitatively (NTP 926 2012), are factors that must be assessed and to which the relevant measures to eliminate or reduce the intensity of exposure must be applied.
Among the psychosocial risk factors, the Spanish Labour and Social Security Inspectorate (ITSS) has identified workload and work rhythm as excessive or insufficient workload, time pressure and fixed deadlines, within the psychosocial factors of workload and work rhythm; and as psychosocial risk factors associated with working time, very long or unpredictable working hours, continuous connection to work, shift work and night work (ITSS 2021). Poor management of these factors will lead to occupational risks such as (techno)stress at work, burnout syndrome, substance abuse or difficulties in reconciling work and family life (Llorens Espada Reference Llorens Espada and Todolí Signes2020).
In this sense, the company will become responsible for incorrect assessment and preventive planning, and will be civilly liable for damages and losses that may arise in the form of work-related accidents or occupational illnesses.
12.2.3 Invasion of Working Time into Private Time
Another problem, in connection with the previous one, is the exhausting working hours that remote workers may have. Firstly, due to an inadequate conceptualisation of the limits of the working day itself, as mentioned in the previous section in relation to availability times; secondly, due to the lengthening of the actual working day.
Among the activities that can be carried out remotely, it is common to find sectors in which work is eminently measured by results, to the detriment of actual hours of work, such as graphic or web design, translation, software development, social media management and digital marketing.
This means that, faced with an excessive burden of productive objectives, workers have to invest an inordinate number of hours in order to meet business requirements, in detriment of the hours dedicated to their private lives.
The right to digital disconnection appears as a buffer against these overflows of the working day, in order to protect those spaces free of work-related demands or communications related to professional activity. Through digital disconnection, the aim is to guarantee rest times, by preserving temporary spaces in which the worker is kept free of digital communications from the company and from the use of the smart devices used to carry out their functions.
In our opinion, the right to digital disconnection, as a key element in guaranteeing the health and safety of remote workers, has a special impact on this type of production, and would require specific legislative development for these workers. On 21 January 2021, the European Parliament passed a resolution in favour of the right to disconnect, calling on the Commission to prepare a directive ‘that enables those who work digitally to disconnect outside their working hours’. As it was said, the Directive ‘should also establish minimum requirements for remote working and clarify working conditions, hours and rest periods’. This legislation has been regarded as vital ‘to protect their physical and mental health and well-being and to protect them from psychological risks’ (Eurofound 2021).
12.2.4 Controlling Working Time in Remote Work
This problem is linked to a third problem, which is how to control the number of hours actually worked during the working day when working remotely. New systems are appearing to comply with legal requirements, such as keeping a record of the working day via telematic systems to measure working time, but they are easily malleable.
Malleable in a double sense. Firstly, because they mean delegating to the good faith of the worker the accurate recording of data on when work is done and when rest is taken, which can lead to the worker being coerced into working shorter hours in situations of overload, for fear of reprisals from the company. But it can also happen the other way around and additional hours may be reported as worked when they have not actually been worked. These increases or decreases in the reporting of working hours have a direct correlation with the salary to be received by the worker, which can generate a high level of conflict in the company. It is usual that, in the absence of an express agreement, working longer hours than those agreed requires an express agreement between the parties, so problems can arise when the worker reports working longer hours than those previously agreed and the company refuses to pay them (Llorens Espada Reference Llorens Espada2022).
Secondly, there may be a need for the company to verify that the person who is carrying out the activity in front of the computer is really the worker who has been hired and not a third person. For this purpose, some companies introduce biometric recognition or verification systems, such as the use of fingerprints or facial or voice recognition. However, it is worth warning about the possible illegality of many of these systems, as they generate the processing of workers’ personal data, often without any legitimate basis for it, as they go beyond what would be considered ‘necessary’ practices for the execution of the employment contract, with the processing of particularly sensitive data (art. 6.1 b and 9.2 b of the General Data Protection Regulation).
From the perspective of the Labour Authority’s inspection of working time, it is not easy to control due compliance with these records when workers are dispersed and relocated. In this sense, it seems necessary to set up registers of remote workers in which, by means of digital systems, the competent labour authority can obtain a digital measurement of the working times carried out by the company and maintain a direct contact channel with these workers.
A multitude of work performance evaluation techniques are appearing on the market aimed at monitoring the activity of remote workers, whether based on geolocation systems, digital cameras, biometric sensors, performance monitoring using software capable of detecting emotions or counting keystrokes and scrolling time, and so on.
From the perspective of occupational risk prevention, these techniques that the company installs, whether for time supervision or monitoring the activity of remote workers, increase the psychosocial occupational risks of the worker. These risks are accentuated when an algorithm intervenes in the data collection and management of the employment relationship. In fact, the empirical analysis confirms that the use of surveillance technologies and algorithmic management practices increases psychosocial risk and negative health outcomes (EU-OSHA 2023).
These risks are accentuated when an algorithm intervenes in the data collection and management of the employment relationship. As noted by EU-OSHA, ‘the amplified use of surveillance and the constant feel of monitoring also have wide repercussions for job quality, leading to reduced work autonomy, work intensification, increased level of stress and anxiety, and reciprocal mistrust between workers and management with serious consequences for the wellbeing of workers’ (EU-OSHA 2023).
In this respect, the involvement of trade union actors in the governance of the algorithms introduced in the company is essential.
12.2.5 High Rate of Unpredictability of the Work Activity
Another characteristic of remote work is its great dependence on the variability of the working hours, which means that these workers have very high rates of irregular distribution of the working day, subject to constant changes. The very modality of work tends to be accompanied by a requirement for flexibility in terms of working hours, which can lead to high concentrations of workload in short periods of time, which would be counteracted by subsequent periods of low demand.
This factor of unpredictability of the service, combined with excessive availability times, can lead to a direct reduction in the psychophysical health conditions of workers.
The establishment of new specific break times for these remote workers should be reconsidered, taking into account their specific digital connectivity. For this purpose, collective bargaining plays a key role, as it allows working time regulation to be adapted to the specificities of each sector and company. This makes it possible to establish specific break times and maximum availability times, but also something as important as the remuneration or monetary compensation of those spaces which, being breaks, generate a need for activation or action when there is a call from the company. Likewise, collective bargaining is the ideal source of rules to regulate the reaction times available to each worker in the event of a call-out.
However, although collective bargaining is called upon to complement regulation in each sector, this does not prevent the legislator from introducing the necessary safeguards to ensure that remote workers enjoy the same guarantees as other workers in matters such as rest, working hours, overtime regulation, vacations, night or shift work and work–life balance (García Quiñones Reference García Quiñones, Mella and Villalba2018).
12.2.6 The Delimitation of Working Time for the Purposes of Occupational Classification of the Contingency
It is also important to define which time periods fall under the concept of ‘working time’, as this has legal consequences for other important occupational health and safety institutions. The fact that the worker is within the effective working time not only means that he or she is dependent on the company and that reciprocal rights and obligations arise in terms of prevention, but also that the occurrence of an accident at work or occupational disease within these areas is subject to special protection under the umbrella of the social security, and may give rise to company liability arising from non-compliance with occupational health and safety regulations during that part of time.
Each national regulation has constructed a specific concept of occupational accident, occupational disease and occupational illness, but the time element of the contingency will always be an important factor to determine when a person is entitled to access that benefit.
An interesting debate is the creation of a specific type of presumption of being at work for digital workers. In the same way that social security protection has included specific cases of protection, such as accidents ‘in itinere’, in which coverage has been extended to temporary periods of commuting to the workplace, consideration should be given to the possibility of including digital roaming times in protection. Otherwise, in addition, the worker may encounter problems in obtaining adequate proof of events or situations that have occurred in private spaces or where there has been no interaction with third parties.
12.3 ICT, Remote Working and Activity Management: Critical Aspects
12.3.1 The Management of Preventive Activity in Teleworking
Business management of preventive activity in telework is one of the most controversial areas, as new risk factors emerge with the introduction of new elements.
The use of ICTs affects the health of workers, yet the regulatory protection at both EU and national levels is insufficient, and it is necessary to strengthen legislation towards a digitalisation of labour relations (Arangüez Valenzuela Reference Arangüez2019). The use of technology in labour relations must be considered as a risk-generating factor, so it is essential that both the risk assessment and the subsequent planning of preventive activity consider all the digital devices used by workers to provide services, since excessive use of these devices can lead to occupational pathologies (Trujillo Pons Reference Trujillo Pons2022). Despite the advantages of using digital tools in terms of flexibility, autonomy and work organisation and management, their use can lead to an increase in the duration, intensity and volume of work (Gil Pérez Reference Gil Pérez2023), resulting in psychosocial symptoms such as stress or anxiety, as well as physical ailments such as eyestrain, musculoskeletal disorders or headaches.
It is therefore essential that the management of preventive activity takes into account the remote location of the company’s workplace and the use of ICT in the provision of services, so that the risk assessment considers all the risks faced by teleworkers, both the traditional risks arising from the use of display screens and the new risks arising from the provision of services with the exclusive use of ICT in a place reserved for the privacy of the worker, and then to plan preventive activity by implementing the most appropriate measures to eliminate or reduce these risks.
12.3.2 Risk Assessment after the Distance Working Act 10/2021
Law 10/2021 on teleworking introduces nuances about risk assessment in teleworking with the intention of maintaining a balance between the employer’s obligations and the worker’s rights, specifying in Article 16 that the assessment must only cover the area set aside for teleworking, without extending to the rest of the home or place chosen for the development of teleworking. The duty of prevention imposes that the risks must be known and for this, the person in charge of the prevention service must have all the information about the risks to which the worker is exposedFootnote 6, so that the decentralisation of the workplace in remote work can be an obstacle to obtaining the necessary information. Here, the right to privacy (art. 18.1 EC) and the right to inviolability of the home (art. 18.2 EC) become important, which may be affected by the employer’s preventive obligations, and the question arises as to how far the employer’s managerial and organisational powers extend. The LTD, in accordance with the provisions of the ‘European Framework Agreement on Telework’ of 16 July 2002, resolves the doubt by pointing out the possibility of the competent authority in preventive matters visiting the teleworker’s home, provided that two requirements are met: a report justifying the visit must be drawn up and the worker’s permission to enter his or her home must be obtained.
The regulation is generic in relation to access authorisation, as it does not specify whether it must be given for all access relating to the development of prevention activities, that is, both for the initial assessment and for periodic checks of the working conditions and activity of workers in the provision of services. In this respect, the Audiencia Nacional in Ruling 44/2022 of 22 March confirms the nullity of prior, generic and unconditional authorisation clauses in individual teleworking agreements that authorise entry to the home, so that each access by the prevention service must have the permission of the teleworker.
In the case of mobile teleworkers, that is, those who combine remote work with tourism, the flexibility provided by their form of remote work allows them to frequently change their place of residence and even the physical space from which they provide their services, making it difficult for them to carry out their preventive activity.
Leaving aside the problem posed by the number of physical spaces from which they can provide their services, the requirement for permission to access the teleworker’s home or that of a third natural person for risk assessment purposes makes it necessary to determine the concept of home, since the areas enabled for remote working may consist of hotel rooms, hostels or co-working spaces. The Constitutional CourtFootnote 7 affirms that for a space to be considered a domicile for the purposes of the protection of art. 18.2 EC, it is essential that it has the capacity to develop private life, and this classification is not prevented by the lack of habitual use or enjoyment. It follows that the hotel room from which the digital nomad carries out his work and private life, being his ‘home’ during the time he stays there, is protected by Art. 18.2 EC and is therefore considered to be a home, so that in these cases the prevention service must also request permission from the worker to access the room and assess the risks in the area set aside for the work to be carried out.
When the two requirements do not coexist, or when the first requirement has been fulfilled and the second is lacking, in order to provide a methodology that offers confidence in the results, the Remote Work Act provides that the risk assessment can be carried out by the worker himself by means of a self-assessment system consisting of filling in a questionnaire and following the instructions of the prevention service. This procedure, as confirmed by the National High Court in Ruling 44/2022 of 22 March, does not affect the right to effective health and safety protection at work, nor does it imply the transfer of the employer’s obligation to the worker.
However, part of the doctrine (Gonzalez Cobaleda Reference Gonzalez Cobaleda2022) warns of the new and significant risk factors that emerge in teleworking, the assessment of which may be affected, thus not guaranteeing effective protection of health and safety at work. Although, according to the preventive regulations, the risk assessment should only cover the area set aside for teleworking, the CourtsFootnote 8 have been pointing out that the workplace is not only the workstation consisting of a chair, desk and computer, but also other spaces in the home in which the teleworker can carry out activities or a working life similar to that which he/she would carry out if he/she worked in person. Accordingly, self-assessments, irrespective of whether or not they are considered a suitable environment, should refer to those other spaces in the home where the teleworker would normally carry out his/her working life, such as the bathroom or kitchen.
Moreover, the implementation of prevention measures in remote work following a self-assessment may be laxer than in an ordinary environment and given that a workplace is in a space reserved for the worker’s privacy, the possibilities for company control over the worker’s compliance with these measures are limited (Rodríguez Cardo Reference Rodríguez Cardo2023).
In short, the regulations require the use of a method that offers confidence in the results, but, in accordance with the above, the emergence of new forms of work organisation, of new risk factors in a digitalised working environment and the generic regulations on the subject, together with the worker’s lack of knowledge of prevention or his or her lack of collaboration, can have undesirable results for the worker, as well as consequences for the employer’s liability.
12.3.3 Planning of Preventive Activity: Preventive Training and Distance Work
When the assessment reveals the existence of risks, the employer will plan the preventive activity, in which he will refer to the human and material resources necessary to avoid and reduce the risks, the emergency and health surveillance measures to be implemented and the process of informing and training workers in preventive matters, among others. Correct planning requires a risk assessment carried out using the most reliable methodology and which allows sufficient information to be obtained to implement the necessary preventive measures, so that if the self-assessment method is questioned, subsequent preventive planning will not be effective.
Given the inherent characteristics of remote service provision, one of the most critical aspects of basic preventive activities is training. In accordance with art. 19 of the LPRL, it is an obligation of the employer to provide both theoretical and practical training, sufficient and appropriate, in preventive matters, and it becomes important when implementing basic corrective preventive measures under the instructions of the prevention service (Orofino Vega & Notario González 2021)Footnote 9. Training must serve to ensure that workers obtain knowledge that helps to eliminate or reduce occupational risks, and that involves the modification of behaviour and the acquisition of the value of occupational health and safety, and teleworking should not be an impediment to this.
However, the regulations do not introduce specific requirements to help ensure sufficient and appropriate training, as this will depend on the level of risk of each job. This requires a prior risk assessment to be carried out which, if it does not exist, makes it impossible to plan preventive activity and to develop specific training for the worker’s job and function (Fernández Collados Reference Fernández Collados2018), as will be the case when the self-assessment of risks is called into question, both in terms of form and substance.
Leaving aside the assessment and even though the content of the training is not specified in the legislation, the Courts establish that it must be correlated with the work that is carried out, generic, abstract and indiscriminate training not being sufficient for the fulfilment of the obligationFootnote 10.
The absence of the teleworker’s presence in the company centre raises controversy regarding the content and the way in which the training is given, and it is questioned whether the regulation requires the presence of the teleworker for the practical training to be sufficient (Estardid Colom Reference Estardid Colom2023). The LPRL does not expressly state that prevention training must be face-to-face, however, the Social Court of the Balearic Islands (Palma)Footnote 11 understands that practical training acts as a complement to theoretical training and helps the understanding, mastery and application of theoretical knowledge to the reality of the company, so that theoretical training can be given at a distance, but on the other hand, to ensure the effectiveness of practical training, it must be face-to-face. Along the same lines, there are judicial pronouncements by High Courts of Justice that consider the obligation of Article 19 LPRL to have been infringed when, without proof of having received the practical training, there is only the signature of a receipt of delivery of a prevention manual seven years before the occupational accident occurredFootnote 12, as well as when the preventive training on the handling of machinery has been carried out at a distanceFootnote 13.
Therefore, judicial doctrine has been mostly inclined to reject online practical training, however, it has done so because in most cases the use of techniques whose effectiveness surpasses classroom training is not guaranteed, thus considering it insufficient and in cases where it is understood that the employment relationship is based on presence and therefore, an application of theoretical knowledge to the practical reality of the company is required, as well as in physical work where the handling of machinery is required. Likewise, the practical classroom training must also be adequate for the worker to be able to face the risks derived from their job, without the classroom nature per se being sufficient for this (Pérez Capitán Reference Pérez Capitán, Egusquiza Balmaseda and Rodríguez Sanz De Galdeano2023).
Due to the generality with which the LPRL regulates training in preventive matters, collective bargaining becomes a way to regulate and impose limits on the form and substance. Several collective agreements introduce references to preventive trainingFootnote 14, indicating that it must be specifically focused on the specific job or function of each worker, but without being more specific than the LPRL about the content of the training. As regards the way in which training is provided, not many agreements regulate the type of training, but as an example we can cite the 4th State Collective Bargaining Agreement for Industry, New Technologies and Services in the Metal Sector, Annex V of which allows managers to provide face-to-face or blended training, that is, training that combines face-to-face and e-learning, but does not allow fully online training. Thus, the generality and lack of specification in the regulations on the subject and the lack of doctrinal unanimity may represent a limit when it comes to regulating practical online training through collective bargaining, which leads companies to opt for the mixed mode for remote workers.
Given the delocalisation of teleworking, the requirement of being present in person interferes with the characteristic element of teleworking, which allows work to be carried out without the need to go to the company’s workplace, although a solution is found in the teleworking agreement, in which the workplace to which the worker is assigned must be detailed, so that nuances and limits can be introduced to the absence of presence.
However, the development of ICT and the digitalisation of the working environment require that in order for training in preventive matters to be carried out in accordance with the defining elements of teleworking, and even more so when it is mobile teleworking, companies have to develop plans that guarantee theoretical and practical training that is entirely online, in which a preventive culture is acquired and which is appropriate for the job, going beyond the effectiveness of face-to-face training.
12.3.4 Cyber-Bullying as an Occupational Hazard
Harassment at work is not a new phenomenon, however, the rise of information and communication technologies in the work environment has become a new way of materialising harassment behaviours (López Rodríguez Reference López Rodríguez, Mella and Villalba2018), thus, the publication of false information about the victim on websites or the sending of defamatory emails are examples of the use of new technologies as a means for the development of behaviours constituting types of harassment: sexual harassment, harassment on grounds of sex, discriminatory harassment and moral harassment (Pérez Agulla Reference Pérez Agulla2022) or mobbingFootnote 15. It is important to detail that harassment is an act that always affects the dignity of the worker, in some cases having a discriminatory motive, and in others not, and that when the company consents without preventing situations of harassment or establishing a protocol for prevention, management, control and resolution, the general obligation of art. 14 LRPR to protect the health and safety of workers is breached (Fabregat Monfort Reference Fabregat Monfort2023).
Although there is no internationally accepted definition of digital harassment at work or cyberbullying at work (Pérez Agulla Reference Pérez Agulla2022), from the existing doctrinal definitions it can be defined as any psychological violence produced through ICTs that generates a humiliating or degrading work environment for people who provide their services in an organisation, whatever the legal nature of the employment relationship (Álvarez Del Cuvillo Reference Álvarez Del Cuvillo2021). The implementation of new and emerging forms of work organisation that do not require being present in the company’s premises is not an obstacle to the development of harassment situations and conduct, as the incorporation of ICTs has shown that it is not essential to share the same physical space (Pérez Agulla Reference Pérez Agulla2022). As teleworkers also have the right to health and safety at work, the employer maintains preventive obligations against violence and harassment, including cyberbullying.
In this respect, ILO Convention No. 190 on violence and harassment includes in its scope of protection ‘violence and harassment in the world of work occurring during, in connection with or as a result of work’ (Art. 3), so that the scope of application, and therefore of protection of health and safety, cannot be limited to the limits of the physical space of the workplace. The precept adds a series of cases far from the business centre to which protection is extended, including the workplace located in a public or private space and those that occur ‘in the context of work-related communications, including those made by means of information and communication technologies’, and in which, of course, there must be a work-related link or connection between the victim and the perpetrator or perpetrators (Fabregat Monfort Reference Fabregat Monfort2023).
Harassment at work is considered a psychosocial risk that causes psychological harm, such as stress or depression, and physical harm, such as hypertension or headaches (INSS 2018). This is the basis for ILO Convention 190, which considers violence and harassment as conduct which, regardless of its frequency, ‘is intended to cause or is likely to cause physical, psychological, sexual or economic harm’ (Art. 1) and which aims to eradicate violence and harassment in the workplace and with the aim of eradicating them in order to achieve a working environment free of violence and harassment, obliges member states to adopt legislation requiring employers to take measures to prevent violence and harassment in the workplace and in particular to assess the risks of violence and harassment, with the participation of workers and their representatives, and to provide them with information and training on the risks identified as well as the corresponding prevention and protection measures.
Open access