The right to disconnect

All indications are that this pattern of work will continue to set the tone for a long time to come. So there are several key questions to be asked:

• How is teleworking impacting the legal relationship with workers?
• What obligations do employees and companies have to deal with this reality?
• Is the right to digital disconnection protected by law?

In this article we answer these questions and many others so that you can recognise when you should seek online consultation with specialised lawyers if you are a teleworker. Also, in which situations it is appropriate for you to seek legal advice.

Pros and cons of working from home

The coronavirus crisis triggered not only the telecommuting trend, but also online shopping and remote learning.

Many workers who were not used to being connected to their computers and mobiles to complete their workday are now doing virtual work from their devices.

This has been positive in keeping many individuals and companies out of unemployment, but it has also brought into focus demands such as the right of workers and their supervisors to digital disconnection.

A worker's need to be connected and available when needed and the urge to be more productive can cause stress, anxiety and burnout. This happens when the rules of the game are not established from the start.

What is digital disconnection?

Among the regulation of the conditions under which the remote employment relationship takes place are the limits to the employee's working, rest and leisure hours.

This is where the relevance of digital disconnection as a new labour right stands out, even more so due to the changes brought about by Covid-19 and the boom in remote working.

Digital disconnection is defined as the right of workers not to answer calls, emails, text messages or social media messages after the end of working hours.

Basically, disconnecting digitally means that the worker has the freedom to respond to the company when he or she resumes work or before, but only if he or she wants to do so.

Since 2018, this right has been provided for in Article 88 of the Organic Law on Personal Data Protection (LOPD) in Spain. Its intention is to legally guarantee rest times, sharing with the family, privacy and other factors such as the enjoyment of holidays and days off without interruptions.

The regulation of remote working

Currently, digital disconnection and the regulation of telework is not something that is being fully implemented in work environments.

According to research by the Trade Union Confederation of Comisiones Obreras (CCOO), as of 2018, just over 11% of labour conventions in Spain include mention of the right to work disconnection for workers.

Based on a study of 3,410 agreements signed since the entry into force of Article 88, only 367 labour agreements include disconnection from work as part of the companies' internal regulation policies.

In this context, digital disconnection still has a long way to go. It is workers, unions and companies that must be aware of this right.

Especially in these times when remote work has become a pandemic pattern, with many possibilities of becoming permanent in some sectors, more than others, of the global economy.

Obligations and Royal Decree

Legal advice can be very timely to guide employees, workers' associations and companies in adapting internal policies in the framework of the digital disconnection and the new guidelines of the Royal Decree Law 8/2020 of 17 March.

Some strategies to be taken care of in order to improve these working conditions are the following:

- Establish in a clear and duly informed way to workers, which are the working hours and rest periods.

- Detail in which situations of force majeure (such as emergencies, exceptional events...) the calls or communications made by the company must be answered once the employee's working day is over or the rest period is over.

- It is advisable for all parties to establish agreements and commit to comply with them in order to avoid hyperconnectivity and burnout syndrome.

- It is advisable to specify in the company organisation chart the jobs where the use of digital tools is part of the working environment.

- Companies should establish rules to guarantee digital disconnection for workers who attend to international clients and suppliers with different working hours to those in Spain.

For their part, Human Resources offices and occupational risk prevention departments should take an active role in ensuring compliance with electronic disconnection to avoid overburdening the worker.

What rights do I have as a teleworker?

Currently, the bodies regulating working conditions in Spain, workers, trade unions and employers' groups are discussing different points of the Royal Decree Law on telework.

This text sets out guidelines for the new regulatory framework that will govern remote employment.

The Royal Decree Law establishes some conditions that may be dubious when interpreted by workers and companies without legal assistance.

These include what expenses companies should cover for remote workers, what is the minimum and maximum number of hours for working from home, what conditions should be covered by the company and what should not.

The coming months will be very important in this respect, to establish the legal terrain that will definitively set the boundaries within teleworking.

The Royal Decree Law 8/2020 of 17 March includes exceptions and transitional provisions that relate to points such as the exceptional implementation due to the pandemic and the line "compensation of employee expenses".

In this respect, there are factors within organised homeworking that may require further attention, as well as injunctions for both employees and employers.

Seek support from a labour lawyer

As for penalties for disconnection, the Organic Law on Data Protection, in force since 2018, already provides routes of judicial action to which employees who feel that their rights not to answer communications, messages and emails outside their working hours are being violated can appeal.

Finally, there are cases that require adequate proof, and this is where the help of an expert such as labour lawyers is extremely useful to help you build your case on the merits and with evidence.

Do you have questions? Are you looking for online legal advice to discuss the issue? Request a legal consultation here with our lawyers at Elías y Muñoz in Madrid, without delay and without leaving your home. You can make an appointment by phone or request a live video-camera consultation with our expert lawyers.