Workers' right to "switch off

In recent months, one of the most frequently mentioned workers' rights is the right to 'disconnect'. Given the society in which we live and the vital importance that the mobile phone has taken on nowadays, it is not easy to leave our work behind once the working day is over. In this article we want to tell you everything you need to know about this issue, which is becoming increasingly important to reconcile work and personal life.

The problems of disconnecting

When smartphones, tablets and, above all, the Internet became widespread in our country, so that we could stay connected to the rest of the world no matter where we were, we thought that this would probably mean a leap into the world of teleworking. However, it ended up becoming an accumulation of circumstances that led us to take our work activities with us everywhere we went.

Recently, the temporary employment company Randstad published a study that clearly exposes the problems that Spaniards have to disconnect from work because of their smartphones. Since the advent of smartphones and applications such as WhatsApp, it is becoming increasingly common to find, at ungodly hours, messages from our bosses or a work colleague asking us to carry out a last-minute task when we are already at home.

The study to which we have referred states that 30% of workers in our country are unable to disconnect from their jobs during their holiday period. In this regard, 39% say that they do it on their own initiative, while 56% admit that they do not do it because their bosses expect them to be available by e-mail or telephone while they are on their break.

The truth is that, in Spain, there is no regulation in this respect. However, in neighbouring countries, there is. In fact, in its latest labour reform, France has recognised the right of workers to disconnect from work. So much so that it obliges companies with more than 50 employees to negotiate with them the times when they cannot be disturbed for work-related matters. Similarly, in Germany, Volkswagen blocks access to its e-mail accounts between 6.15 p.m. and 7 a.m. so that its employees cannot access them. Employee time control seems to be working well.

What about Spain?

As we said before, in Spain there is no legislation regulating the right to digital disconnection. However, there are several initiatives in this regard. For example, the Spanish Socialist Workers' Party (PSOE) and En Comú Podem have presented proposals on the subject, which the Minister of Employment, Fátima Báñez, is willing to make a reality at some point.

However, other sources claim that this is already one of the rights included, albeit not explicitly, in the Workers' Statute in terms of employee time control. This is mainly because it specifies the limitations set by the working day, after which the employee would have no obligation to attend to professional duties. However, the crux of the matter lies in the current precariousness of employment.

The working day as a framework for the right to disconnection

The Workers' Statute, in the section regulating working hours, specifies that, once agreed with the employer in the employment contract, the employee has no obligation to attend to professional matters. In fact, beyond those hours, he/she has no responsibility whatsoever towards the company. However, it does include the figure of overtime.

However, overtime is voluntary and no employee is obliged to work overtime if he/she does not wish to do so, except for reasons of force majeure. Moreover, they are paid at a higher rate than an ordinary working hour. The problem lies in the fact that the aspects covered by the right to disconnection are not considered as such and are not paid. This is the reality that thousands of workers are currently experiencing.

Is there a right to refuse?

Many people turn to employment lawyers and trade union representatives asking whether they have the right to refuse to reply to that email sent by their boss out of hours or to leave that WhatsApp group they have with their work colleagues that they have been put into without question. The answer, in all cases, is like this.

A clarification is needed on this issue. Despite the fact that the right to disconnection is not regulated, taking into account the limits set by the Workers' Statute in its section related to the working day, in the event of dismissal due to this circumstance, it should be declared unfair without too many problems. However, many people agree to this condition for fear of being out of work and having to face a court case without receiving any remuneration in the meantime.

The problem between worker and client

In addition to what has already been said, there is another very important issue here. Generally, the rights we demand as workers do not correspond to our demands as customers. For example, those who work from 10 a.m. to 7 p.m., if they arrive at an establishment at 8 a.m. to find it closed, they will probably never come back. This is undoubtedly a full-fledged law of the funnel.

As far as workers' rights are concerned, there are doubts about the feasibility of regulating digital disconnection. This is because, on the one hand, the law cannot prohibit a company from giving a mobile phone to its employees, nor can it prohibit them from taking it home. Therefore, if this issue were to be legislated, it would probably be by way of a recommendation or, at most, that an employee cannot be forced to do so. However, taking into account the frameworks established by the Workers' Statute with regard to working time, it can be said that this already exists.

The fact is that the impossibility of disconnecting digitally from work leads to many problems in a number of ways. For example, it is estimated that approximately 12% of Spanish workers suffer from burnout syndrome, i.e. they are 'burnt out' by their work, which is often due to this issue, which makes it impossible for them to separate their professional and personal lives, to rest and to dedicate the time they need to themselves.

In any case, in the event of suffering some kind of threat from the employer for not agreeing to answer the phone or email once the working day is over or, because of this issue, you are suffering 'mobbing', it is best to seek the services of a specialised professional to provide advice and, if necessary, to file a labour lawsuit.