Over the last few months the use of distance working in all its forms as a means of promoting flexibility and striking a work/life balance, as a temporary measure to contain COVID-19, is now commonplace in numerous sectors and companies. In this post we analyze the implications of telework in connection with the right to digital disconnection and training the in the workplace.
The implementation of these working mechanisms does not in any way erode the traditional rights and obligations inherent in an employment relationship. Indeed, the principles and standards that form part of this relationship such as good faith and mutual trust must continue to be respected.
Within these rights and obligations, providing services via a remote working arrangement involves respecting employees working hours. This means that certain obligations remain, such as the registration of working hours in the terms envisaged for the traditional performance of onsite work, or the new mechanism of digital disconnection.
The actual preamble to Organic Law 3/2018, of December 5, 2018, on Protecting Personal Data and Safeguarding Digital Rights states in this regard, that the recognition of the right to digital disconnection in the context of the right to privacy when using digital devices plays a prominent role.
The law provides that workers and public employees are entitled to digital disconnection in order to safeguard, outside the working hours established by law or in the collective labor agreement, respect for employees’ breaks, leave and holidays, as well as their privacy and, in particular, in the case of full or part-time telework as well as at the home of the employee.
In short, this right means that workers cannot be obliged to connect remotely for work purposes in their rest periods.
Following on from the above, the courts have gradually started to issue decisions analyzing cases in which this right to digital disconnection has been breached. A good example is the judgment by the Madrid High Court of November 4, 2020.
This judgment analyzed a claim contesting a penalty imposed on an employee who was required to attend a two-hour online compulsory training course, the content and performance of which was required by law in view of the activities pursued by the employee. The course was available for approximately three months, so the employee could decide the best time to complete the training but without modifying the schedules of his on-site work.
The company argued, among other reasons, that the hours that the employee spent on the online course were recognized as working time and that he was therefore not entitled to digital disconnection within working hours, only during rest periods.
The judgment concluded that the employee’s right is not incompatible with the company being able to impose the performance of work activities that are compulsory outside ordinary working hours and that as actual working time the right to digital disconnection was not applicable. Only if it had not been possible to fit the two hours of training into the months given to complete the course, without breaching the limits applicable to actual working time, would it have constituted an illegal situation.
In any event, beyond the specific circumstances of the case analyzed, it should be borne in mind that, in general, a company training course is a professional activity that should be considered actual working time.
Garrigues Labor and Employment Law Department
