Change of workplace Can I refuse a transfer?

Geographical mobility is a tricky issue under the Workers' Statute. Therefore, here we want to analyse it in depth, especially with the aim of explaining whether you can refuse a transfer or whether you are obliged to accept it.

What is meant by geographic labour mobility?

Geographical mobility in the Workers' Statute is regulated in Article 40. Specifically, it specifies that the employer has the right to change the workplace when he/she deems it appropriate. However, depending on the distance involved and the duration of the transfers that employees have to carry out, it will be necessary to consider certain rights and obligations or others.

In this sense, in order to be understood as geographical mobility, the change of workplace must entail the employee having to change his or her habitual residence. According to current case law, for this to happen, the following requirements must be met:

• The distance between the worker's home and the new workplace. Generally, if it exceeds 56 kilometres (Supreme Court ruling of 15 June 2021), it is usually considered to be geographical labour mobility. However, the specific circumstances of each case should be taken into account.
• Travel time to and from work exceeds 25% of the working day. If the worker carries out his duties on a full-time basis, this would be 2 hours.
• The cost of travel. If it exceeds 20% of the worker's salary, this is also considered to be mobility.
• In general, any other factor that makes the change of workplace unprofitable in economic terms for the employee.

To explore this concept further, we need to explain the difference between relocation and posting both semantically and in labour law. Specifically, this lies in temporality.

For example, a transfer of work to another city necessarily implies a change of residence on the part of the employee. On the other hand, if the employee can maintain his or her usual residence even if he or she has to spend more time getting to the workplace, we are talking about posting.
But there is more.

If the change of workplace is of a definitive nature, then we can speak of relocation. The legislation understands that this occurs when it exceeds the duration of 12 months within the following 3 years. On the other hand, if this requirement is not met, it would also be a relocation.

What are the justified grounds for mobility for which the employer can carry out the transfer?

The Workers' Statute gives the employer considerable freedom to modify the workplace of his business. In particular, it refers to economic, organisational, technical and production reasons that compensate for this.

Obviously, all employees have the right to contest the change of their place of work. If they do so, the employer is obliged to justify the reasons before a judge within 20 working days.

Can I refuse a transfer to another workplace?

According to Article 40.1 of the Workers' Statute, the employer is obliged to notify the employee and his or her legal representatives of the decision to carry out the transfer at least 30 calendar days in advance. In order to be effective, the document must provide information on the new destination, the effective date and the reasons for the transfer.

As mentioned above, there is no judicial or administrative body to review the company's decision if the employee decides not to challenge it. So, if this does not happen, 30 days after the notification is made, the transfer will be effective. At this point, the worker has two options.

Accepting the transfer of the workplace

In this case, the worker is entitled to receive financial compensation for the expenses incurred in making the transfer with his or her family. For this, the provisions of the collective agreement or, failing that, the individual negotiation between the worker and the employer must be taken into account. However, in the latter case, the amount cannot be less than that specified in the text.

In this regard, case law has clarified over the years that, even if the worker decides not to change his or her habitual residence, he or she is entitled to receive this relocation allowance.

Refuse the transfer

If the employee does not accept the transfer, he/she has the possibility to terminate the employment relationship with his/her employer under special conditions. Specifically, they are entitled to receive compensation equivalent to 20 days' pay per year worked, up to a maximum of 12 months' pay, i.e. the same as they would receive in the case of dismissal for objective reasons.

In addition, as long as he/she has contributed for sufficient time, he/she will receive the unemployment benefit that corresponds to him/her. The employee must apply for termination within one year of receiving notice of the transfer. The company must carry it out immediately. But if it does not do so, he must never leave his post (it could be considered voluntary redundancy) and go to court.

Ultimately, the answer to the question of whether I can be transferred without my consent depends on many factors. The most important of these is whether or not, according to the existing case law, we can assume that geographical mobility has taken place. If this is the case, as an employee you can choose between accepting the change and receiving compensation for relocation expenses or, alternatively, terminating the employment relationship with the right to receive unemployment benefits and 20 days' salary per year of service.