Adela (not her real name) was fired for poor performance when she was a factory laborer. The company accused her of spending too much time in the office bathroom. In 2018, a court reversed his dismissal because, among other things, the bosses could not prove that the visits to the bathroom were not justified, since the company could not prove that there was a “malicious” intention to waste time.
The arrival of teleworking puts the focus on a matter as thorny as it is classic: knowing what operators do during working hours. Everyday actions such as having a coffee, smoking a cigarette or going to the toilet can be a nest of misunderstandings when the office is at home, where employers do not visually control the workforce.
It is common that these traditional disconnections, to stretch the legs, to have breakfast or to take a call, are registered with the status of absent or “in yellow”. This occurs when the system detects that the employee spends several minutes without taking any action with his computer. These periods of absence can confuse bosses. The matter of going to the bathroom, without going any further, has already required the attention of justice. The National Court had to clarify in May of this year that going to the service, in a call center company, should be understood as working time. The company cannot force the staff to deduct these periods from the rest time.
Not all breaks in teleworking are lost (and therefore recoverable) work time. There are stops accepted by the laws and by the office uses. For example, for Ana Escribá, a doctor in labor law from the International University of Valencia, going to the bathroom “is a basic necessity”, and therefore, forcing to “make up time would be an issue that would undermine the dignity of the worker.”
Another example of a non-recoverable pause is internet crashes at home. This is what the National Court said in the same matter, where it establishes that these disconnections cannot harm the employee. As in the office, employees at home do not have to amortize the time they have been without Wi-Fi at the end of the day.
The judges also accept the disconnection to address certain “private procedures”, such as going to the bank or the Post Office. Especially when there are overlapping schedules, the law provides for exceptions, explains Iván Mirkia, Kepler Kast’s head of labor. In these cases, it is advisable to notify the bosses in advance about the absence.
The new telecommuting law advocates flexibility. But beware, this is not synonymous with “working fewer hours”, points out the lawyer. “It means that if you have to do an eight-hour shift, you can make those eight hours of work more flexible during the day,” he explains. In this way, “the worker must recover those times that, since they must be effective work, have not been, as long as they are not legally foreseen breaks or permits.” In any case, it is important to know that the terms of flexibility must always be negotiated “in the teleworking agreement made between the worker and the company, or in collective bargaining.”
For his part, José Luis Díez, partner at Everfive Abogados, recalls that the uses and customs are also in force. Thus, if in the office there was the habit of “having three coffees and going out to smoke four cigarettes”, without the obligation to make up work time, at home “they cannot force teleworkers to do the opposite”. The basic idea is that remote work cannot be in a worse condition than in the office.
Is it possible to fire a worker who spends too much time in yellow? To do so, the experts point out three requirements. First, make it an extreme case; secondly, that the absences are repeated over time, and finally, that the absences are surprising.
However, looking closely at the circumstances of each case is essential. In this sense, Fabián Valero, partner of Zeres Abogados, recalls that the company must be able to prove a “continuous and persistent decrease in performance in relation to the agreed normal performance” if it wants to settle the relationship.
Nor can the employer forget that there are breaks that are shielded by law. This is the case of a worker with an illness that forces him to stop from time to time; or an operator who has a breastfeeding permit; or the time that parents have the right to care for children under nine months of age. Dismissal without taking these circumstances into account can lead to an “unjustified or discriminatory termination”, explains the labor lawyer.
Finally, remember that there are jobs that simply do not require being glued to the screen all day. Even teleworking. In this direction, Ana Escribá points out that only “if the provision of the service depends solely and exclusively on the use of computer media, would it be possible to dismiss a worker for transgression of good contractual faith”. Iván Mirkia agrees on this point, adding that “a company such as a call center, where dependence on the internet is very high, is not the same as a company of another type where, despite not having internet momentarily, they can continue to be carried out. other tasks (reading, writing, studying or designing) ”.