On January 24, the Superior Court of Justice of Madrid (TSJM) endorsed the disciplinary dismissal of a worker, in charge of IT support at an insurance company, for unjustified absences from her job – she carried out her activity from home – and repeated periods of disconnection. The Chamber ruled in favor of the company, which already saw its decision recognized in the first instance, even admitting that the worker, hired in 2002, had not been previously sanctioned nor had she received notices for her breaches.
The insurer –see sentence– supported himself to fire his employee in the article 64.3 a) and m) of the Statewide Collective Bargaining Agreement for Insurance and Reinsurance entities, Mutual Collaborators of Social Security, in relation to the 54.2 d) and e) of the Workers’ Statute, and provided a certificate of hours of connection and disconnection of the worker. In her appeal to the Superior Court, the employee argues that she did not receive notices about her disconnections and that sufficient individualization of the particularities of her case had not been carried out, since there were no economic damages or delays in tasks.
The magistrates point out that the worker’s conduct entailed a violation of the elemental and basic duty of her employment contract, which states that she must perform the entrusted work task during the entirety of her working day, something that contradicts the extensive periods of inactivity by disconnection. The Chamber notes that the Article 54.2.d) of the Workers’ Statute must be related to the Article 5.a) of the Statutewhich imposes on the worker the duty to fulfill the obligations of his job in accordance with the rules of good faith and diligence, and with the Article 20.2 of the Statutewhich reiterates the requirement of good faith, now as a reciprocal obligation of both parties.
The TSJM considers the worker’s conduct very serious, due to its content and reiteration, and that it is not possible to defend that there was no damage to the company
Starting from these premises, it must be considered as very serious behavior of the workerdue to its content and repetition, and as the jurisprudence indicates, the lack of proof of damages for the company is not relevant to justify in isolation the unethical action of the person who commits the infraction, since the breach of the duties of goodwill is enough for such qualification. faith, fidelity and loyalty implicit in any employment relationship”, the magistrates point out, to dismiss the appeal of the employee, who has the way of the Supreme to unify doctrine.
Teleworking has become the protagonist of the courts, with numerous sentences that mark the way of resolving these conflicts. According to the tax, labor and accounting consulting firm SynchroGo In his blog, before the previous sentence, there are other rulings on teleworking and disconnections that provide a similar line. He too Supreme Court of Madrid sentenced last Novembersee sentence– that the repeated lack of connection during the days of teleworking should be equated to absences from work without just cause and if there is repetition, it supposes a fraud in the entrusted management by not carrying out functions from home, which replaces the place or work center where he traditionally carried out the activity.
From SynchroGo Some nuances are pointed out that the judges consider in their decisions, such as when disconnections occur involuntarily. Thus, the National High Court has ruled that power outages or disconnections not attributable to the employee count as effective working time –see judgment of May 10, 2021-. Along with this, a court in Santander has declared the dismissal of a worker inadmissible on the understanding that there were failures in the computer system used by the company –judgment of June 15, 2021-. This resolution points out that the voluntariness in the disconnections was not accredited -the worker provided screenshots and messages that showed that he had informed the company of the connection problems-, which leads to a fair dismissal.
The European Commission is committed to regulating teleworking and implementing the right to subsequent disconnection at a community level
Yesterday, on Tuesday, the European Commission “initiated the process” to regulate teleworking and implement at community level the right to subsequent disconnection from work with the aim of supporting the digitization of the economy and guaranteeing adequate working conditions. The European Commissioner for Employment and Social Rights, Nicholas Schmidt, stated that “a coherent legislative response is needed” so that the fact of working remotely does not translate into an increase in the working day. The right to disconnect is approved in only 4 countries of the 27 of the European Union, including Spain. “There is no reason why in some countries this right exists and in others it is rejected, it is important to establish these rights at a European level,” Schmidt said.