Remote Work and Equal Treatment in Spain: Employees Covered and Not Covered by a Collective Agreement

This article comments on the Spanish Supreme Court Judgment 142/2026 of 5 February 2026, concerning remote work, equal treatment and differences between employees covered by a collective bargaining agreement and employees excluded from its scope in Spain.

The judgment examines whether a more favourable remote-work regime for employees not covered by a collective agreement is objectively justified and non-discriminatory.

The principle of equal treatment in remote work policies

The principle of equal treatment in employment law does not require absolute uniformity of working conditions among all employees within a company. What Spanish law prohibits are arbitrary, unjustified differences or distinctions based on prohibited grounds.

In particular, Article 14 of the Spanish Constitution and Article 17 of the Spanish Workers’ Statute prohibit discriminatory differences in treatment, especially where they may be connected to grounds such as sex, religion, trade union membership or the infringement of fundamental rights.

In the context of remote work, the implementation of teleworking policies and flexible working arrangements has given rise to numerous collective disputes in Spain. One of the most relevant issues is whether a company may apply different conditions to different internal groups of employees, particularly between employees covered by a collective bargaining agreement and employees excluded from its scope.

Remote work, collective bargaining agreements and internal differences within the company

In Spain, the legal framework for remote work is mainly found in the Spanish Workers’ Statute and Law 10/2021 on remote work. This legislation recognises the need for an agreement between the company and the employee, but does not impose a general automatic right to remote work.

This statutory framework must be read together with collective bargaining rules, which may establish different personal scopes of application and different legal regimes within the same organisation.

Against this background, Spanish case law has examined whether granting organisational advantages—such as the possibility of working remotely from a place of residence other than the usual one during certain periods—may amount to discrimination where the benefit is limited to a specific group of employees.

A more favourable remote work regime for employees not covered by the collective agreement

In the case analysed by the Supreme Court, the company allowed employees not covered by the collective agreement to work remotely from a place of residence other than their usual home during the summer and Christmas periods. This possibility, however, was not extended to employees covered by the collective bargaining agreement.

The claimant trade union argued that this difference amounted to indirect discriminatory treatment, as it affected the work-life balance rights of employees subject to the collective agreement.

However, the judgment concluded that there had been no breach of the principle of equal treatment. The Court found that the difference was objectively and reasonably justified by the existence of two legally differentiated groups of employees within the company.

Elements justifying the difference in treatment

The key elements supporting this conclusion include the following:

• The existence of a collective bargaining agreement that validly distinguishes between employees included within and excluded from its personal scope of application.
• The voluntary nature of the exclusion from the collective agreement for certain employees is expressly provided for in the collective agreement and is subject to objective limits, such as a maximum threshold of 33% of the workforce.
• The existence of different working conditions between the two groups, particularly regarding availability, flexible working hours and level of responsibility.
• The absence of a specific collective regulation of remote work requires homogeneous treatment for all employees.

From this perspective, the Court held that there was no valid comparator requiring identical treatment for both groups, as they were not in a legally comparable situation.

Equal treatment and prohibition of discrimination

The judgment reiterates Spanish constitutional doctrine on Article 14 of the Spanish Constitution. In private employment relationships, there is no general obligation to ensure absolute equality in all working conditions. Rather, the law prohibits discrimination based on unlawful or particularly protected grounds.

Differences in treatment between employees may therefore be lawful where they are based on an objective, reasonable and proportionate cause.

This distinction is particularly important in companies with complex internal structures, different categories of employees and different collective or individual employment regimes. Equal treatment does not necessarily mean identical treatment; it means the absence of arbitrary or discriminatory treatment.

No indirect discrimination or anti-union discrimination

In its proportionality assessment, the Supreme Court held that the company’s measure was neither arbitrary nor intended to encourage employees to opt out of the collective bargaining agreement.

On the contrary, the difference formed part of a broader flexibility and remote work policy that had already existed for several years and applied to all employees whose roles allowed a more flexible work organisation.

The Court also rejected any indirect discriminatory effect linked to trade union activity. It found no evidence that the company intended to discourage application of the collective bargaining agreement, influence trade union membership, or undermine collective bargaining.

Employees not covered by the collective agreement: responsibility, availability and flexibility

The judgment also highlights a relevant factor: employees not covered by the collective agreement generally perform functions involving greater responsibility, higher availability and a more flexible working regime.

These circumstances may justify specific organisational benefits, such as a broader or more flexible remote work regime, without this necessarily amounting to unlawful unequal treatment.

For companies, this reasoning is particularly relevant when designing differentiated policies for senior staff, managers, employees with special responsibilities, or employees who are validly excluded from the scope of a collective bargaining agreement on objective grounds.

Case law approach to remote work and equal treatment

In summary, the judgment consolidates a clear interpretative approach: equal treatment does not require identical conditions for groups of employees subject to different legal regimes within the same company.

Differences between employees covered by a collective agreement and employees excluded from its scope may be valid where they are based on objective criteria, are provided for or supported by the collective bargaining structure and satisfy a test of reasonableness and proportionality.

This approach is particularly relevant in a context marked by the expansion of remote work and hybrid working models. Business flexibility must coexist with the need to guarantee non-discrimination and respect for collective rights.

Conclusion

Remote work and equal treatment must be assessed from both a legal and organisational perspective. A company is not always required to apply a uniform remote work regime to its entire workforce, but it must be able to justify any difference on objective, reasonable and proportionate grounds.

Where differentiated groups exist within and outside the scope of a collective bargaining agreement, it may be valid to grant a more favourable remote work regime to employees excluded from the collective agreement, provided that the difference is supported by functional, organisational or collectively agreed reasons and does not involve discrimination or an infringement of fundamental rights.

For employers in Spain, the key point is not whether different remote work conditions may exist, but whether those differences are properly justified, documented and aligned with employment law, collective bargaining rules and the principle of non-discrimination.

The regulation of remote work requires companies to balance business flexibility, equal treatment and respect for collective bargaining agreements.

We advise companies in Spain on the design and implementation of remote work policies, flexible working arrangements and the management of employees covered and not covered by collective bargaining agreements.