The right to digital disconnection

In Europe this right is only recognized by law in Spain, France and Belgium. More and more Companies include in their collective agreements the Right to Digital Disconnectionl that came into force on December 5, 2018 with the Law on Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD).

The article 88 of the LOPDGDD recognizes the right to digital disconnection in the workplace:

“Public workers and employees shall have the right to digital disconnection in order to guarantee, outside of legal or conventionally established working hours, respect for their rest time, permits and vacations, as well as their personal and family privacy”.

How do you define digital disconnection?

Digital disconnection in the workplace is defined as the right that workers have not to connect to any digital device of a purely professional nature during their rest periods, permits and vacations, so that the working day must not be exceeded through the use of electronic means made available to the worker.

This right refers to the digital media available to the worker in charge of the company; professional email, work laptop, Smartphone mobile, etc. And it covers from the moment the worker ends his working day until he starts the next one again.

It goes without saying that, within the scope of digital disconnection in the workplace, vacations, personal business days, paternity and maternity leave, leave for lactation and periods of temporary disability, among others.

What is the purpose of this right?

The purpose of the right to digital disconnection responds to the social debate that has arisen in recent years, which demanded shorter working hours or an approximation to the schedules of the rest of Europe, facilitating the < strong>reconciliation of work and family life. It also responds to the need to observe labor relations as changing and dynamic realities affected by technologies that no longer require the presence of the employee in the workplace so that they can continue to provide services.

This right is a consequence of the current work environment, in which digital resources make immediate contact possible between the company and the worker, regardless of the day or time, which it blurs the line between time spent at work and personal time and space. The path to normalization of the worker’s hyperconnectivity ends up having an impact on their work performance, generating stress or computer fatigue due to the constant state of alert and the permanent connection with your work environment (more than the personal one).

For this reason, the right to digital disconnection seeks to put an end to the usual practice in the workplace of keeping the worker permanently available to the mobile or to the email account once their work has finished. working day, avoiding invading the worker’s personal space and hindering the balance of personal and family life.

What must the company do to guarantee this right?

The right to digital disconnection must be an aspect dealt with directly within the company. The legislation establishes the business obligation to ensure and enforce worker health and safety, as a consequence of the risks associated with the continued use of digital tools (stress, fatigue, postural hygiene, burn- out, etc).

Since the entry into force of the LOPDGDD, the company is obliged to develop an internal policy aimed at all its workers, including those who hold management positions , in which to define the modalities of exercising the right to disconnect and the training and awareness actions of the staff on a reasonable use of technological tools that avoid the risk of computer fatigue.

Since it is a matter of collective scope, for the internal policy to be valid it must have the consultation of the workers’ representatives. In terms of digital disconnection, as in the registration of working hours, the legislation calls for its concretion via collective bargaining and, only in a subsidiary way, by agreement at the company level.

At JL Casajuana Abogados we recommend the drafting of an internal code of conduct for the implementation of said policy and the intervention of the workers’ representatives in the preparation phase, as well as special attention to increasingly frequent cases in working life such as remote work or teleworking, especially when said work requires the use of technological tools made available to the worker.

Therefore, the right to digital disconnection is also a business obligation, and non-compliance can lead to fines of more than €100,000 in the event of an accident at work or occupational disease related to the matter.

What are the areas in which this right affects?

Taking all of the above into account, it should be noted that the modalities for exercising this right will depend on the nature and purpose of each employment relationship, as well as what can be agreed upon in collective bargaining or, failing that, the agreement between the company and the workers’ representatives. However, in order to broadly outline each of the areas of action, the following should be noted:

• The reconciliation of the worker’s personal and professional life, that is, the right to disconnect from work, maintains a close relationship with the protection of the worker’s personal and family life, so that the application of the same must ensure the reconciliation of personal and professional life of all workers on staff.
• The organization of work time, which implies clearly delimiting the time of effective provision of work (whether face-to-face or remotely) and rest time (daily, weekly or as annual vacations ) of each worker, which is not an easy task if technological tools allow permanent and direct contact with the worker (at any time and in any place), regardless of whether or not they are in the workplace.
• The prevention of occupational risks associated with the use of technological tools, being that it is necessary to ensure the safety and health of the worker avoiding the psychological impact that the fact of not disconnecting from the environment can have on them work (for example, the well-known burn-out syndrome or burned worker).

The addressees of these measures are all company workers, that is, not only those who have the greatest demands for conciliation or who belong to collectives more vulnerable. In the end, it ends up being a right that benefits both the company and the worker and avoids controversies regarding working hours.

Departamento de Derecho Laboral

30/07/2019