Member Article

Employers must develop in-house policies laying down the right of employees to disconnect from work, with special emphasis on remote working using digital tools.

Recent legislation — Organic Law 3/2018, of December 5, 2018 — not only brings Spanish law on the protection of personal data up-to-date, but also includes a section regulating the protection of citizens’ digital rights.

Of particular note in that section is the right to disconnect from the workplace, which seeks to ensure that workers’ rest time as well as their personal and family privacy are respected.

This right flows from the modern working environment, in which digital resources make it possible for employer and employee to have immediate contact, regardless of the day of the week or the time, blurring the boundary between working time and personal time and space.

The way in which the right is exercised will depend on the nature and subject-matter of each employment relationship, as well as the terms determined by collective bargaining or, failing which, the terms agreed between the company and the workers’ representatives. The right to digital disconnection touches on a number of areas:

• The employee’s work-life balance.
• The organization of working time, drawing a clear distinction between actual (physical or remote) working time and rest time (of a daily or weekly nature or in the form of annual leave), which is not easy when IT tools allow for workers to be contacted at any time, whether or not they are in the workplace.
• The employer’s obligation to ensure and enforce the worker’s safety and health, as a result of the risks associated with continued use of digital tools (such as stress, fatigue, postural hygiene and burn-out).

In any event, either because it is a requirement of the collective bargaining agreement or because it is an issue to be dealt with directly within the company, employers must draw up an internal policy in this regard, paying special attention to cases in which work is performed wholly or partly from a remote location or from the employee’s home using IT tools. The content of the policy should aim to set out the detailed rules governing the exercise of this right and the conditions for training staff and raising their awareness on the reasonable use of IT tools.

Being an issue with a collective scope, it must be the subject of consultation with workers’ representatives to ensure that the internal policy is valid.

This measure is directed at all workers of the company, that is, not only workers with the greatest work-life balance needs or those belonging to more vulnerable groups or groups at risk of suffering illnesses associated with stress or “IT fatigue” caused by their job position.

The new rules on the right to digital disconnection follow the way paved by the French Labor Code, following the entry into force of Law 2016-1088, of August 8, 2016. The effects of that legislation extended across borders and sparked an interesting debate between scholars and professionals in so far as it brought labor law closer to reality and the day-to-day problems of labor relations. In that regard, we set out in this blog a few months ago, before the entry into force of Organic Law 3/2018, the key issues that would be raised by the exercise of this right in Spain.

That being said, it should be borne in mind that, given the way in which the right to digital disconnection has ultimately been formulated in Organic Law 3/2018, the internal policy for which provision has now been made does not take the form of a simple voluntary recommendation regarding occupational health and safety or the good practices that may be adopted by companies; instead, it is of mandatory application.

Accordingly, workers and their representatives are entitled to demand its implementation. Failure to comply with this new obligation may result in the filing of individual or collective lawsuits or the imposition of penalties by the Employment Inspectorate.