Digital disconnection, a “second-class” right within the European Union
Five years after the adoption of the digital disconnection law, workers are still facing work situations that exceed the working hours set out in their contracts. Around 60 % of Spanish employees answer work-related messages and emails during their holidays, according to a survey by the Infojobs portal, which also reveals that 72 % of workers go online outside their working hours, either regularly or occasionally.
The right to digital disconnection “is considered a second-class right”, criticises Francisco Trujillo, professor of Labour and Social Security Law at the Univesitat Jaume I, who claims that it should be understood as fundamental at both Spanish and European level.
Although France, Spain, Italy and Belgium have approved legislative changes to regulate measures in this sense, the European Commission (EC) has still not responded to requests from MEPs to generate a Community regulation that recognises this right.
The first instance of this was on 21 January 2021, when the European Parliament passed a resolution calling on the EC to prepare a directive “allowing those who work digitally to switch off outside working hours”, calling for minimum requirements for remote working and working and rest times.
MEPs called for the same in a report published in July 2022 with the aim of preserving mental wellbeing at work, describing the right to disconnect as “essential”. This initiative is justified by the effects on “the organisation of working time by increasing the flexibility and constant availability of workers” and by the need for Member States to “ensure that working hours are respected and that social and professional isolation is avoided”, according to the text.
One year after the publication of that report, both having been adopted with large majorities, there is still no concrete impetus from the EC to make digital disconnection a fundamental right. Until then, regulations will remain somewhat conditional, as in Belgium, which allows companies to design their own strategies when negotiating conditions.
THE TSJ OF CATALONIA DECLARES THAT “IT IS NOT A FUNDAMENTAL RIGHT”
Ruling 2843/2023 of the High Court of Justice of Catalonia confirms this situation explicitly by dismissing the appeal of a worker who sought an additional 120,000 euros after receiving compensation of 14,857.43 euros; his claim against a company that did not have an adequate and sufficient workday register or a digital disconnection protocol had been partially upheld.
The claimant argued that his workload was “disproportionate” as he was attending to clients in numerous time zones, so that “he was subjected to a complete availability that prevented him from enjoying his rest time or being able to disconnect from the electronic and technological means he was constantly aware of, thus causing serious intrusions into his privacy and into his personal and family life”.
He also pointed out that “not even the holiday calendar was made available to him, so that the whole summer went by without him being able to enjoy his holidays or having any idea when he could do so”, and that “all of this would have caused the onset of the psychiatric pathology he suffered and from which he still suffers”, according to the ruling.
In this regard, the TSJ of Catalonia states that “the right to limitation of working time and to daily and weekly rest periods, as well as to a period of paid annual leave constitutes a fundamental right under EU law by virtue of article 31.2 of the Charter of Fundamental Rights of the European Union, but this does not mean that it is a fundamental right of those included in the Spanish Constitution, since in the latter the limitation of working time and the right to rest appear in article 40.2 within the guiding principles of social and economic policy”.
Trujillo states that the most important thing for those who find themselves in legal cases of this type is to “look for indications of a cause and effect relationship between excessive working hours and pathologies”, so as to demonstrate that their right to life and physical and mental integrity is being violated, or even that it is an invasion of their privacy. “There should be more jurisprudence at the Supreme Court level,” he says, asserting that future rulings will come closer to considering it a fundamental right. “There will be more and more cases.”
