The bells are jingling (2) – do employees have a right to disconnect?

It is widely taken as a given that employees will have the right to disconnect over the festive season, particularly while on annual leave. But as we know, more and more people are finding it difficult to separate their working and personal lives. 

This 'blurring' started with the widespread use of mobile technology for work purposes. But the COVID-19 pandemic, having resulted in many more employees working from home all the time, has acted as an accelerator.

As a result, the EU has rightly become concerned with employees' mental health. Mindful of people's desire to visit their family over Christmas, on 2 December, the European Commission ('the Commission') asked member states to encourage employers to allow these employees to work from home or from the place where they intend to spend the holidays for some time before and after any family reunion. (Read more in this blog post.)

EU legislation on the right to disconnect?

The EU is now paving the way for a proper EU-level right to disconnect. On 1 December, the Employment Committee of the European Parliament ('the Committee') adopted a proposal for a resolution on the right to disconnect, stating that: 'Outside working hours, employees must be allowed to switch off digital devices without facing consequences... The culture of being "always on" and the growing expectation that workers should be reachable at any time can negatively affect work-life balance, physical and mental health, and well-being'. 

The Committee further said that 'EU countries must ensure that workers are able to exercise the right to disconnect effectively, including by means of collective agreements'. It calls on the Commission to propose an EU directive on the right to disconnect, since this right is not explicitly enshrined in EU law. 'Being able to switch off from work should be a fundamental right'.

The proposed resolution is expected to be voted on in a plenary session of the European Parliament ('the Parliament') in January 2021. If and when endorsed by the Parliament, the resolution, which is a non-legislative act, will be put forward to the Commission and EU member states for consideration as part of future regulatory decisions. 

So an EU legal instrument on the right to disconnect is still some way away. But the move is very interesting and likely to gather support from many stakeholders. However, critics will argue that the EU's working time rules or Charter of Fundamental Rights already address the issue, and so there is no need for another legal instrument.

There have been many attempts by employers over the years to protect working hours from personal intrusions. (Remember the debate on whether or not to allow employees to access their social media accounts from work computers.) The focus has now shifted to how to protect an employee's private life and space from work intrusions. More than ever, it will be a difficult balancing act.

National rules on the right to disconnect

Recommendations for governments and social partners to introduce 'right to disconnect' initiatives to prevent large numbers of employees being at risk of physical and emotional exhaustion pre-date the pandemic, but they are even more acute now.

A right to disconnect already exists in a number of EU jurisdictions, including France where it was introduced in the 2016 revision of its Labour Code, making it mandatory for employers to introduce a policy. 

In Spain, such a right to disconnect was introduced in 2018, following the French example. Some companies operating in Spain have policies on the issue, including measures such as:

• prohibiting communications outside of working hours; 
• forwarding e-mails and disconnecting servers to prevent remote employees from working beyond their working time; and 
• setting out alert systems for employees who connect more than five times outside of their working hours.

In Germany, one of the submitted proposals for a legal framework for teleworking includes such a right to disconnect and calls for technical solutions to be developed in order to allow for effective disconnection. According to this proposal, moderate deviations from the rather strict working time requirements in German law shall be possible for mobile work, provided that the employer has a technical system in place for every employee doing mobile work, securing times of disconnection. Such a system shall be activated by the employee via smartphone or laptop with the consequence that all calls to the company mobile phone and forwarding of messages via mail messenger etc will be blocked until the next working day and the sender will receive an automatic out-of-office notice. Exemptions can only be made in 'exceptional emergency situations' (the term is not specified in the draft) or to inform the employee about significant changes to their next working day. There seems to be strong political opposition to this proposal, making it unlikely to succeed.

Even in countries without an explicit right to disconnect, like Belgium, it could be argued that such a right falls under the scope of the general obligation of employers to safeguard the well-being at work of their employees.

Solutions that were developed by some employers a few years ago (such as shutting down the company servers at night, effectively protecting employees against incoming mail during their rest period) may not work well in a remote-working context, with employees favouring flexible working time. There are therefore still plenty of technical and practical (as well as legal) hurdles to overcome.

Watch this space for more (and enjoy your disconnected time during the holiday season)!

We invite you to read more about how the COVID-19 pandemic is impacting the work life on our dedicated website.