Abstract
Faced with protecting the right to privacy and, with it, the inviolability of homes, the development of new technologies and the possibility of developing work from home has opened the door to a series of new conflicts that require us to provide a specific legal framework by which such situations can be addressed. In the Spanish case, we speak of Law 10/2021 from 9 July on remote working. The objective of this study is to assess the scope as well as the problems that this law generates during its application, regarding controlling the provision of services. However, we not only identify the incidental factors, but also provide a necessary reinterpretation of the right to privacy from the perspective of the inviolability of homes, especially when its current articulation may operate to the detriment of employees’ rights, as contradictory as this may seem.
Highlights
We start from two limiting criteria: firstly, our analysis remains within the framework of contractual relationships within the private sector, not so much because Law 10/2021 from 9 July is not applicable to the public sector, but because we do not contemplate other regulations that are applicable in such a sector and because we contextualize such a norm, and secondly, our analysis is performed from the exclusive space–time perspective of the provision of services, so we do not assess other factors subject to regulations regarding remote working
Despite this instrumental power being an essential and exclusive element of freedom of enterprise, insofar as it is non-negotiable, it must at the same time be, as we have already expressed, the object of consideration in relation to other fundamental rights recognized by the employee
If the mutability that accompanies labor relations has already been recognized, the incipient technological development in all productive phases has ended up leading to a reformulation of the productive framework which is not present exclusively at the scale of means of production. This context has justified the entry into force of a regulatory framework which, does not end up providing legal certainty to the field of remote working
Summary
The conclusion to this had exclusively been reorganization under the criteria of greater temporality; in the last two years, a new factor, flexibility, with a direct impact on the productive relocation of jobs has acquired special relevance compared with traditional work models anchored to physical work centers. We start from two limiting criteria: firstly, our analysis remains within the framework of contractual relationships within the private sector, not so much because Law 10/2021 from 9 July is not applicable to the public sector, but because we do not contemplate other regulations that are applicable in such a sector and because we contextualize such a norm, and secondly, our analysis is performed from the exclusive space–time perspective of the provision of services, so we do not assess other factors subject to regulations regarding remote working.
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