The grant of housing for employees has become a key factor in attracting talent within the hotel sector. For this reason, it is crucial that its regulation is approached from an employment law perspective, linking it directly to the employment contract, to avoid disputes and ensure a harmonious and mutually beneficial employment relationship.
One of the main demands in recruitment processes, and a genuine turning point when deciding whether to apply or accept a job offer, is the possibility for the employee to reside in accommodation provided by the company, particularly in touristic areas where housing can be both expensive and extremely scarce. In this context, companies in the tourism sector face the dilemma of regulating the grant of housing either as a parallel tenancy agreement subject to the Urban Leases Act, or as part of the employment contract, linked to the employment relationship and governed by employment law.
This article examines the advantages of regulating the grant of housing use as part of the employment relationship, as this approach is the one that fits best with the highly personal and reciprocal nature of the employment contract and ensures that this tool for attracting talent does not become a source of conflict when the employment relationship can no longer be maintained. To resolve this issue from an employment law perspective, the right to use the accommodation must be linked to the employment contract. In this way, the employee becomes a tenant through an annex in their employment contract. This option allows the employment contract to serve as the sole channel for regulating both the employment and the housing arrangement within a single agreement.
Based in Article 3 of the Workers’ Statute, this annex should stipulate that the company grants the use of a property it owns to the employee for residential purposes, considering such use as part of their remuneration, and therefore as remuneration in kind. The company may establish in this annex the conditions of use of the accommodation, the obligations of the employee as a user, the possibility of having to share it with other individuals, as well as instructions for use and rules of cohabitation or discipline.
Likewise, it may also include the consequences arising from any breach of these rules or instructions issued by the employer, which could range from the loss of the right to use the accommodation to other sanctions applicable to a breach of employment obligations. In the case of permanent-discontinuous contracts, it could also be agreed that the right to use the accommodation is suspended during periods of inactivity. However, this would require sufficient advance planning of such periods to manage the employee’s exit and re-entry into the accommodation in each case, as well as the establishment of reasonable notice periods so that the employee can arrange their change of residence.
Through this approach, the duration of the grant of housing use is directly linked to the employment relationship and, therefore, the termination of the latter for any reason entails the extinction of the right to use the accommodation. It may also be agreed that this right ends in cases of leave of absence. If the employee, upon termination of the employment contract, refuses to vacate the accommodation, employment law provides the possibility of resolving this matter in a single procedure, which is no slower than the civil eviction process, as both the dismissal and the eviction of the employee from the accommodation are resolved together.
The main drawback of linking the use of accommodation to the employment contract is that, unless its use is agreed for a specific period, this condition becomes a more favorable term of the contract that cannot be unilaterally withdrawn. Finally, it should be considered that, by linking the accommodation to the employment relationship, its use constitutes remuneration in kind. Indeed, case law has consistently held that the grant for housing used free of charge or at a price below market value will be considered remuneration in kind when the company provides the employee with accommodation not only for work-related reasons, but also to meet the ordinary or particular needs of the employee and their family.
The management of the grant of housing use in employment relationships within the tourism sector must be carried out with care and a thorough understanding of the applicable regulations. The employment law route offers greater flexibility and control for the company, allowing the grant of housing use to be linked to the employment contract and clear conditions of use to be established. However, it is essential that agreements are properly drafted and comply with all legal requirements. In this way, disputes can be avoided, and a harmonious and mutually beneficial employment relationship can be ensured.
