Is digital disconnection a labour right?

Digital disconnection is a concept that, within the digital framework, you have surely heard about recently. For some months now, its inclusion in the new Organic Law on Data Protection required by the European Union has been the subject of debate. But do you know what it really consists of and whether it can truly be considered a labour right? Here we are going to tell you.

How is the concept of digital disconnection defined?

Digital disconnection is the right of workers not to connect to any digital device of a purely professional nature during their rest periods and holidays. In particular, it refers to the smartphone provided by their employer, their professional e-mail account, their work laptop, etc.

This right extends from the moment the worker finishes his working day until he starts his next working day. In other words, if he leaves work at 3 p.m. on a Friday, he would have the right to disconnect all his professional electronic devices until 8 a.m. the following Monday, for example. Needless to say, this also includes holidays, days off for personal matters, paternity and maternity leave, among others.

What is the aim of the right to digital disconnection?

Basically, to put an end to a common abusive practice in many companies that consists of keeping workers glued to their mobile phones or email accounts after the end of their working day. Obviously, these are hours that are not paid, let alone considered as overtime for salary purposes, and which violate the employee's right to rest. They can also cause problems in reconciling their personal and family life.

So, can digital disconnection be considered a labour right?

This is a more problematic question than it may seem at first glance, as we will see a little later. In any case, let's refer to the current legislation to better understand the issue.

The origins of the concept of digital disconnection in the workplace

The concept of digital disconnection is older, but the first time it appeared in a legal text was in France. Specifically, it was included in the French Labour Law and Labour Code (the equivalent, in Spain, to the Workers' Statute) on 8 August 2016 and came into force on 1 January 2017. These legal texts came to guarantee the reconciliation of workers' professional and family life and their rest periods, as well as to prevent possible risks to their health.

However, instead of establishing a specific regulatory framework for digital disconnection, France left this issue to collective bargaining in each sector. The effectiveness of this action is questionable, but it was clearly a step forward for French workers' rights.

What is happening in Spain?

In Spain, we have been talking about digital disconnection for considerably less time than in France and even in the European Union as a whole, although it is true that we will not be the last ones to legislate on this right.

Well, the first thing to say is that, at present, the right to digital disconnection does not exist in our country, as there is no specific regulation in this respect. However, there will be soon.

Last May, the European Union obliged companies operating in the EU to adapt to the new General Data Protection Regulation (hereinafter, GDPR). This was approved on 14 April 2016 by the European Parliament, but did not enter into force until 25 May 2018.

Beyond that, the GDPR meant that all countries were obliged to modify their data protection laws to adapt them to its contents. In the case of Spain, this was the Organic Law on Data Protection.

However, as the months have passed, the Spanish government has decided, taking advantage of the modifications that were to be made, to include other additional concepts, including digital disconnection. In fact, the new text will be called the Spanish Organic Law on Data Protection and Guarantee of Digital Rights (LOPDGDD, from now on). However, the LOPDGDD is still pending parliamentary debate and has no date of approval or entry into force.

For its part, the LOPDGDD, in principle and unless modified during its parliamentary procedure, copies the French model, that is to say, it leaves the regulation of the right to disconnection to collective bargaining. Therefore, despite the fact that it includes all the employment benefits discussed in the section defining this concept, there is uncertainty as to how it will finally be applied.

However, Spanish legislation does promise to be pioneering in a number of respects. Among them, mention should be made of the obligations that companies will have to acquire in order to guarantee their workers' right to digital disconnection. These are:

• Employers should, after the end of the employee's working day, automatically log off their business email accounts.
• They should also require employees to leave their business phones at the workplace.
• Conduct training courses aimed at raising awareness among employees to eliminate, or at least reduce, the amount of emails sent and business calls made outside working hours.
• Prevent or, in case of extreme necessity, limit access to business email accounts by employees outside working hours.
• Controversies around digital disconnection

At first glance, it may seem that the right to digital disconnection only brings advantages for the worker by protecting his or her rest time and facilitating family reconciliation. However, this is not always the case.

It should be borne in mind that, nowadays, jobs, especially those involving new technologies, tend to be increasingly flexible in terms of working hours. In fact, this is especially evident in the case of those who use teleworking formulas to fulfil their obligations, i.e. who work from home.

The majority of these workers say that they would prefer not to lose the flexible working hours they enjoy in exchange for giving up their right to digital disconnection. This is because, according to the group, they can better reconcile their family and work obligations by working from home than by having to go to an office or being forced to disconnect their mobile devices at a certain time.

In short, it never rains to everyone's liking, but what is clear is that the regulation of the right to digital disconnection, still non-existent in Spain, is increasingly urgent given the current labour market situation. All that remains is to reach agreements that guarantee benefits also for those who enjoy greater flexibility thanks to teleworking. If you have any doubts about this, contact G. Elías y Muñoz Abogados, our employment lawyers will be delighted to help you.