Digital disconnection: a real or a fictitious right?

Digital disconnection: a real or a fictitious right?

We live in a digitalised world, the use of digital tools and the implementation of remote work have made it increasingly difficult to disconnect from work. In order to guarantee this disconnection, the right to digital disconnection has been regulated, but how far does this regulation go, and does it really protect workers’ disconnection?

This article analyses this right to digital disconnection, the current regulation and its implications for both employers and workers.

What is the right to digital disconnection and for what purpose was it created?

The regulation establishes that “workers and public employees shall have the right to digital disconnection in order to guarantee, outside the legally or conventionally established working time, respect for their rest time, leave and holidays, as well as their personal and family privacy“.

As can be seen, the legal configuration is diffuse, not explicitly regulating what “being disconnected” during rest time entails.

It has been developed through doctrine and jurisprudence, although it should be pointed out that it has not been a right that has been excessively demanded by workers and, consequently, its development has not been particularly revealing.

What does this right to digital disconnection entail? Most pronouncements are clear:

“In rest time the worker has the right to digital disconnection, that is, to keep his devices or means of communication inactive, so that he does not receive messages from the company or from his work colleagues for work-related reasons” (STSJ Madrid nº549/2021 of 9 June 2021).

Therefore, it is not possible to impose on workers the obligation to connect remotely for work purposes during their rest time. In other words, workers are not obliged to connect to meetings or answer emails/communications outside their working hours.

And be careful because this right has been understood in some judicial pronouncements as a development of article 18.4 of the Constitution and, therefore, of the fundamental right to personal and family privacy, and may therefore have special protection.

This right to digital disconnection was created with the aim of protecting workers in the digital era in which we find ourselves, i.e. to protect their rest time and their personal, family and work balance.

The aim is to prevent work from intruding on rest time, as the use of electronic devices is making it increasingly difficult to draw the line between the time spent providing services and the time spent resting.

Constant connection can lead to work-related risks such as stress or anxiety resulting from the mental overload that excessive connectivity can entail. This right is therefore designed to prevent psychosocial risks.

Is there a specific regulation governing the right to digital disconnection?

At the state level, the right to digital disconnection is regulated in article 88 of Organic Law 3/2018, on the Protection of Personal Data and Guarantee of Digital Rights, and is transferred to Royal Legislative Decree 2/2015, of 23 October, approving the revised text of the Workers’ Statute Law in article 20 bis and to Law 10/2021, of 9 July, on remote work in article 18.

It should be taken into consideration that Article 88 of the LOPD establishes that the exercise of this right “shall take into account the nature and purpose of the employment relationship, shall promote the right to reconcile work and personal and family life, and shall be subject to the provisions of collective bargaining or, failing this, to the agreement between the company and the workers’ representatives“.

It also imposes an obligation on the employer to draw up an internal digital disconnection policy for workers, defining the modalities for exercising the right to disconnection and training and awareness-raising actions for staff on the reasonable use of technological tools to avoid the risk of computer fatigue. 

Consequently, this right is developed through an internal protocol that the employer, after hearing the Workers’ Representatives, must implement in the company. It is important to note that exceptions to this digital disconnection can be regulated but be careful not to limit it in a generic way because there have already been court rulings that have declared such clauses null and void.

By way of example, the AN in its ruling no. 44/2022 of 22 March 2022, declares the following clause null and void for being excessively vague and generic, implying a possible infringement of the right to digital disconnection:

“The Worker shall have the right not to attend to digital devices, when his or her working day has ended, unless the justified urgent circumstances indicated in this clause are present. 

Justified urgent circumstances shall be considered to exist in situations that may cause damage to the company or the business, the temporary urgency of which requires an immediate response or attention by the worker“. 

What happens if the employer does not respect this right and violates it?

The employer has to guarantee the effective exercise of this right to digital disconnection and to this end, as mentioned above, the employer is obliged to draw up a policy aimed at establishing tools for the reasonable use of digital tools and, consequently, to protect this right to digital disconnection.

In this regard, in the event of a breach of the right to digital disconnection, the employer may incur an infringement that may be serious or very serious depending on the type of breach, with a serious infringement entailing a fine of between 751 and 7.500 euros and a very serious infringement entailing a fine of between 7.501 and 225.018 euros, including a failure to implement a digital disconnection policy in the company. 

In addition, it should be noted that the employer cannot sanction the worker in the event that they refuse to answer calls, emails, etc. or refuses to attend meetings outside working hours, among other behaviours, given that the worker is protected by this right.

It is important to point out that this policy of digital disconnection is useful and necessary, limiting the use of IT tools and establishing measures and protocols for action favours both companies and workers.

Employers can establish control methods and rules for the use of IT tools which, if they are made known to workers, they must comply with.  Therefore, a well-implemented digital disconnection policy defends and protects workers, but also the company against non-compliance.

Through such a policy, the way forward can be established, which will help to know how to act, and which, in addition, will avoid administrative sanctions or convictions.

Is the right to digital disconnection really respected today?

It is commonly known that in many jobs this right is difficult to respect either because of the characteristics of the job or for many other reasons – company policy on customer service, the time difference in jobs with international reach or because we live glued to our mobile phones, etc. -.  For this reason, digital disconnection is often presumed to be impossible, and in many cases not because of an employer’s imposition but because of the workers’ simple feeling of responsibility.

Therefore, it remains to be seen whether the implementation of these digital disconnection policies will have an impact on the exercise of the right to effective compliance, which so far seems to be resisted.

As mentioned above, a digital disconnection policy is useful and necessary, limiting the use of IT tools and establishing measures and protocols for action favours both companies and workers. Companies must get moving.

Do you have a digital disconnection policy in your company and want to see if you can make the most of it? Or do you want to implement a new digital disconnection protocol and need advice? Don’t hesitate to contact me, RSM Spain’s Employment Department has the keys to ensure that this policy meets your needs and complies with the regulations.