The digital disconnection in the era of teleworking
The right to digital disconnection in the era of teleworking
The rise of teleworking and remote work promoted by the new normality that we have had to live after the pandemic has caused the barriers between the worker’s working day and his corresponding rest time. In this panorama, we find the right to digital disconnection, already present in the Spanish regulation since 2018, but currently very hot and subject to jurisprudential interpretations due to the new labor realities caused by the increase in the famous teleworking.
¿What is the right to digital disconnection?
The right to digital disconnection< /strong> is the right that employees have not to connect to a digital device for professional reasons outside their normal working hours. This right allows workers not to have the obligation to answer any matter related to work, from calls, e-mails, video calls, messages and personal WhatsApp, during their rest periods and vacations.
The employer cannot require the worker to carry out any type of work-related activity through the means provided by the company during the time of digital disconnection. Although the employer can send a communication at any time, the worker has the correlative right not to see it and not respond until the start of his workday.
Due to the link between this right and the reconciliation between work and personal or family life, it could be considered an expression, in the workplace, of the fundamental rights to privacy and physical and mental integrity, although, according to DF 1, this article together with articles 79 to 82 and 95 to 97 of the Organic Law 3/2018, of December 5, Protection of Personal Data and guarantee of digital rights (hereinafter LOPDGDD), will have the character of ordinary law, configuring itself as a strictly legal configuration right.
¿Where and since when does the law include it in Spain?
This right is included in article 88 of Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights (and, in addition, due to To the rise of teleworking due to covid-19, a section was dedicated to it in RD-Law 28/2020, of September 22, on remote work, later endorsed by Law 10/2021 , of July 9, BOE, 10, of distance work that validates practically all of the Royal Decree-law).
With the entry into force of the LOPDGDD in 2018, the regulation of digital disconnection measures in the company became mandatory. In this law, it is stated that the employer must define the modalities of exercising the right to digital disconnection and the criteria for the use of digital devices, as well as the training and awareness actions of the personnel, counting for this with the collaboration of the workers’ representatives. The employer is required to prepare an internal policy and the duty to inform workers about the criteria of use, however, the law does not require its express regulation by Collective Agreement.
As we have previously commented, RD-Law 28/2020, of September 22, on remote work also made special mention of the right to digital disconnection, focusing on the importance to preserve this right in the teleworking modality and corresponding to the company a duty to limit the use of technological means of communication, as well as respect for the maximum duration of the day, a provision that continues without alteration in article 18 of the Law
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Who is responsible for guaranteeing this right?
The “company policies” must necessarily respect these rules that regulate the right to digital disconnection. And not only for teleworkers, but for any worker who has a digital device in which he can receive company communications. P>
Therefore, it is the employer who has the obligation not only to respect the right to digital disconnection, but also to guarantee that this right is actually made effective through the preparation of Internal policies that regulate the use of digital devices, taking into account the nature and purpose of the employment relationship (sector of activity, technological means, roles, types of employment, etc.) and that allow real rest outside of working hours.< /p>
¿What happens if this right is violated?
Failure to comply with labor regulations by the company, such as the violation of the right to digital disconnection, implies a series of sanctions for committing serious infractions, included in the Law on Infractions and Sanctions in the Social Order (LISOS) of August 4, 2000. Among these infractions related to the violation of the right to digital disconnection we could highlight:
- Establish working conditions lower than those established by law or by collective agreement, as well as acts or omissions that are contrary to the rights of workers. (Art. 7.10 SMOOTH)
- The transgression of the norms and the legal or agreed limits in terms of working hours, night work, overtime, complementary hours, breaks, vacations, permits, registration of working hours. (Art. 7.5 SMOOTH)
It should also be mentioned that the violation of the right to digital disconnection may entail in some situations breaches related to respect for the privacy and dignity of workers, which according to art. 8.11 LISOS, is classified as a very serious offense in terms of individual and collective labor relations.
In short, if a company fails to comply with the digital disconnection “it can be fined because it is not applying the protocol on the right of workers to mandatory digital disconnection, which must be implemented in all companies”.
The Labor Inspectorate can impose fines for violating digital disconnection, which can be considered a serious offense and reach up to 7,500 euros (previously 6,250 euros). If the privacy of the worker is violated, this fine could reach a maximum of 225,018 euros (previously 187,515 euros).
It should be remembered here that the publication in the BOE of July 10, 2021 of Law 10/2021, of July 9, on remote work (from the validation by Congress of Royal Decree-Law 28/2020, of September 22) has led to the modification of article 40 of the revised text of the Law on Offenses and Sanctions in the Social Order (Royal Legislative Decree 5/2000, of August 4, LISOS) with an upward revision of the amounts of labor sanctions as of October 1, 2021 by twenty percent, or even higher percentages for some specific crimes, which has been strongly criticized due to the opportunity and timing that has been sought to carry out these increases.
¿How could the violation of this right be demonstrated?
The worker who denounces the violation of this right may prove it, among other means, through the communication received during the time that “digital disconnection” is established.
Although, as we mentioned previously, the company can send communications outside of working hours without thereby violating the right to digital disconnection, the worker will have to prove that this communication required permanent availability during his rest period. In this regard, it should be noted that specific situations in which a force majeure event is communicated to the worker are completely different from repeated communications at any time of the day. Likewise, an email is not as invasive as a phone call.
On the other hand, the violation of this right is also closely related to the obligation of the elaboration of an internal policy by the company, which is recommended to be carried out by experts, which guarantees the effectiveness of this right addressed to all workers. Failure to comply with this obligation could entail an infraction with the respective sanction, especially when said work requires the use of technological tools made available to the worker.
The special assumption of Senior Managers
The Ministry of Labor and Social Economy in the Guide of the Ministry of Labor for registration of working hours, published on May 13, 2019< /strong> clarified that the time record applies “to all workers, regardless of their category or professional group, to all sectors of activity and to all companies, whatever their size or organization of work” . However, the Government exempted senior management personnel from this obligation, understanding as such, those who have formalized a senior management contract under the provisions of Royal Decree 1382/1985, of August 1.
However, those managerial workers who have signed an ordinary employment contract (superior managers, positions of trust or with the exercise of special responsibilities) would not be included in this exception and must register your working day like the rest of the workers with the aim of effectively complying with the rest time and guaranteeing the right to digital disconnection.
However, the Government, aware that this group usually receives specific remuneration to compensate for their special dedication, makes express reference in its Practical Guide to the employment agreements availability included in the employment contracts of managers, and considers that the remuneration obtained by the worker by virtue of said agreements already compensates in a proportionate manner for this greater requirement of working time. This, of course, is based on the premise that the aforementioned agreements do not cover up cases of abuse of rights.
It may interest you: “Lawyers specialized in Senior Managers”
Conclusions: Limits to the right to digital disconnection
The right to digital disconnection is configured as the right that employees have not to connect to any digital device outside of their workday and guarantee the effectiveness of their break time. It is obligatory for the company through the elaboration of internal policies and can lead to the commission of serious infractions with the respective sanction. A right to which we must pay special consideration in this time of increasing teleworking and which is already being the subject of new jurisprudential interpretations of which we give some preliminary information.
Among these recent sentences, the STSJ of Madrid, November 4, 2020 (rec. 430/2020) stands out, which draws a clear limit to the right to digital disconnection, namely: the training time that can be organized outside of ordinary working hours is considered effective working time and, therefore, operates as a limit to the right to digital disconnection.
The same is said by the STSJ of Madrid of June 9, 2021 (rec. 318/2021) when it provides that there is no right to digital disconnection within working hours , but only within the break time.
Both sentences may be appealed before the Supreme Court, and we will be very attentive, in addition to others that may be issued by other courts, in relation to the matter at hand. p>