The Supreme Court has endorsed the reduction in remote working through the termination of existing agreements and the signing of new ones
The Supreme Court has confirmed that a company may request the termination of individual remote working agreements and offer new ones with a lower percentage of remote working, provided that the applicable collective agreement permits this. This does not constitute a substantial collective amendment, but it does require the individual consent of each employee, as the percentage of on-site work cannot be altered unilaterally.
The judgement examines the decision by a company in the railway sector to reduce, with effect from 1 March 2025, the general percentage of remote working from 40 per cent to 30 per cent. To implement the measure, the company revoked the existing individual agreements and asked the employees affected to submit new applications for remote working, which would be authorised at the lower percentage. Various trade unions challenged the action through a collective dispute, seeking a declaration of its nullity or, in the alternative, a declaration that it was unjustified and the restoration of the previous conditions.
The collective agreement on remote working stipulated that this arrangement could account for between 30 per cent and 60 per cent of the annual working hours. It also provided for an initial term of one year, extendable for equal periods by agreement between the parties, and allowed both the company and the employee to request its termination, which was to take effect on the agreed date or, at the latest, within the following 90 days.
The Supreme Court begins by distinguishing between two scenarios. The amendment of a remote working agreement maintains this arrangement but alters some of its conditions, including the percentage of on-site work. In accordance with Article 8.1 of Law 10/2021, this requires agreement between the employer and the employee; it must be set out in writing prior to its implementation and communicated to the employees’ representatives. Reversibility, by contrast, involves a complete transition from on-site work to remote work or vice versa.
Based on this distinction, the Chamber emphasises that a company cannot unilaterally reduce the percentage set out in a current individual agreement from 40 per cent to 30 per cent. The voluntary nature recognised by Article 5.1 of Law 10/2021 applies both to the initial conclusion of the agreement and to any subsequent amendment thereof. Nor is it sufficient for the new percentage to fall within the limits set out in the collective agreement, as this circumstance does not permit an individually agreed condition to be altered by a decision of the employer.
However, the Court considers that, in the case under consideration, no such unilateral amendment took place. The company applied the collective agreement clause allowing either party to terminate the remote working arrangement and, once the agreements providing for 40 per cent had expired, offered to enter into new ones at 30 per cent. These were only signed by those who accepted the new terms. As these are voluntary agreements, neither party may be bound indefinitely against their will, provided that the termination is carried out in accordance with the agreed terms.
The Chamber also ruled out the need for the company to resort to the procedure for substantial collective amendment set out in Article 41 of the Workers’ Statute. This provision allows for the unilateral adoption of certain amendments where there are justifiable grounds, whilst remote working and changes to its conditions necessarily rest on the consent of both parties. Consequently, Article 41 of the Workers’ Statute does not constitute the appropriate channel for imposing or amending the percentage of remote working.
Consequently, the Supreme Court dismisses the appeals lodged by CSIF and CCOO, joined by USO, and upholds the judgment of the National High Court. The ruling therefore permits employers to terminate existing agreements and offer new ones with different conditions where the collective agreement so permits, but maintains a key safeguard: the new agreement must always be individually accepted by the employee.