Is a worker entitled to disconnect the digital devices that connect him/her to the company after finishing work? In France, the answer is yes. In Spain, it is unclear, due to the lack of regulation.
Since the passing and publication of Law 2016-188 of August 8, 2016 (modifying the Worker’s Code), French law recognizes and structures a worker’s right to digital disconnection from his/her company after finishing work.
The current French Worker’s Code states that employers are required to negotiate: “the implementation of means to regulate the use of digital devices, in order to respect workers’ rest periods and vacation, as well as their personal and family life”.
There is no doubt that the present digitalization of labor relations has revived the debate on the possible existence of a worker’s right to digital disconnection. Those in favor of the right claim that it is closely related to other legally recognized and consolidated labor rights, such as the right to conciliate personal and professional life, the right to organized working hours (duration, timetable, rest periods and vacation), without overlooking the protection of the workers themselves in the workplace. Those against the recognition and regulation of the right claim grounds of flexibility and the freedom of workers to organize their working time in certain activities and professions.
Thus, the importance of analyzing the current situation relating to the use of digital devices provided to workers to perform their functions and the need for employers to communicate with workers when signing employment contracts as to their possible right to disconnect them.
In our country, as opposed to France, from a legal-labor perspective, there are no regulations or solid case law developed by our labor courts and tribunals on the existence of a right to disconnect. Nevertheless, since 1997, certain court decisions have highlighted the following:
- the reality of prolonged working hours that exists in certain sectors;
- the need to correctly manage working time and rest periods, and
- the limits on the scope of an employer’s management and organization powers (art. 20 of the Workers’ Statute).
As a precedent, the first decision we should quote is the National Court Judgment of July 17, 1997, which analyzed a case in which a company required its sales staff to keep their cell phones connected at all times. The judgement concluded that the uninterrupted connection of cell phones exceeded the company’s powers and could be detrimental to the workers’ legitimate rights and interests, by ruling “the annulment of company instructions obliging its workers to continue attending to their cell phones after they had finished their working day.”
Along the same lines, the judgement of the High Court of Justice of Castilla y León of February 3, 2016 analyzed a case in which a worker performed a part of his work remotely at home, using information systems provided by the company. The Court warned that “even though a worker provides services from home, the company is required to establish the necessary rules relating to working time, in order to ensure compliance with the limits on working hours and rest periods.”
These judgments highlight the need to organize and separate working hours and rest periods.
The difficulty lies in how to transfer the right to a legislative sphere and whether or not the right to disconnect should be specifically regulated.
Legal doctrine has extensively analyzed the way in which the response by legislators should fit into the current labor regulations. The alternatives proposed are:
- to regulate the right to disconnect as a basic worker’s right (contemplated in art. 4 of the Workers’ Statute);
- specify the limits on sending e-mails, messages and business calls in the regulations governing rest periods between working days (art. 34 of the Workers’ Statute);
- focus the right to disconnect in the framework of annual vacation (art. 38 of the Workers’ Statute).
The regulation of the right to disconnect could also be included in the legislation governing occupational risk prevention, as well as in that of labor infringements and penalties.
However, as pointed out at the beginning of this post, there are also grounds to consider that the right to disconnect should not be regulated in a general manner, but rather as an issue to be determined and regulated in each particular case.
In a situation in which technological progress is moving much faster than legislation, there is still a long road ahead for legislators and companies themselves to structure the means of regulating and controlling work, amongst other important issues, and clearly establish the applicable rules.
Garrigues Labor and Employment Department