The Labor Chamber of the High Court of Justice of Catalonia has determined that subduing an employee to very long working days and untimely working time, thus compromising his right to rest and digital disconnection, entitles the employee to the right to extinguish the contractual relationship, but not to be awarded any compensation associated with the breaching of fundamental rights.
Judgment number 2843/2023, of May 5, 2023, of the High Court of Justice of Catalonia has dismissed the appeal filed by an employee, who claimed an additional compensation for not respecting his right to disconnect. In his opinion, the lower court ruling that did not grant him this right infringed Article 88.4 of the Organic Law on the Protection of Personal Data and Guarantee of Digital Rights in relation to Article 18.4 of the Spanish Constitution, which regulates the limitation of the use of information technology to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights.
Although the Labor Court had recognised the employee’s right to extinguish the employment contract under Article 50 of the Workers’ Statute, considering that there had been a serious breach of employer’s obligations, it did not consider that those breaches had entailed a breach of fundamental rights such as the limitation of the use of information technology to guarantee honor and personal and family privacy regarding digital disconnection or physical and moral integrity.
The Labor Chamber of the High Court of Justice of Catalonia concludes that, although it is true that the right to the limitation of working time and to daily and weekly rest periods constitutes a fundamental right in the legal framework of the European Union (EU), by virtue of Article 31.2 of the Charter of Fundamental Rights of the EU. This does not mean that it is a fundamental right included in the Spanish Constitution, since the limitation of working time and the right to rest is defined in article 40.2, within the guiding principles of social and economic policy.
The ruling of the High Court of Justice of Catalonia provides clarity to the debate generated year after year during holiday periods, which is none other than the right to digital disconnection. It is essential to be aware that holiday and rest periods are necessary in terms of well-being and health. Anyone, regardless of the activity they perform, needs physical and psychological recovery. Fortunately, the legislation already provides us with the legal framework for the development of policies and protocols that, subject to the provisions of collective bargaining or, failing that, to what has been agreed between the company and the employees’ representatives, regulate this not fundamental but important right for all employees.
In addition, it should not be forgotten that, although the regulations do not include a specific sanction, the doctrine considers that the breaching of the right to digital disconnection may take its place in the transgression of the legal or agreed limits in terms of working hours, vacations, leave, etc., in infractions related to respect for the privacy and dignity of the employee and, even in non-compliance with occupational risk prevention regulations.
Fernando Pomposo
Garrigues Employment & Labor Law Department
