Digital disconnection in the workplace
Digital rights
In 2018, citizens’ digital rights (such as net neutrality, universal access and digital security, among others) were recognised for the first time. From then on, Spanish legislation introduced for the first time the right of workers and public employees to digital disconnection in the workplace in order to guarantee, outside working time, respect for their rest time, leave and holidays, as well as their personal and family privacy [LO 3/2028, art. 88].
This right should serve to enhance the right to reconcile work and personal and family life.
Where are workers’ digital rights regulated?
Although the law refers to collective bargaining for its development, the Workers’ Statute (ET) has been supplemented and now establishes the right of salaried workers to privacy in the use of digital devices made available to them by the employer, to digital disconnection and to privacy from the use of video surveillance and geolocation devices.
The law does not develop the content of this right, leaving it to the autonomy of the will of the parties. Thus, collective bargaining will determine the details of the right to digital disconnection in each production sector or company.
Collective bargaining agreement
Sectoral or company collective agreement.
The content of the right to digital disconnection at work is determined by collective bargaining, which may be sectoral or company-wide. In the event that a company has both a company-specific agreement and a sectoral agreement and both regulate the right to digital disconnection with different content and incompatible obligations, the regulation in the sectoral agreement will take precedence [ET, art. 84.2].
However, if this conflict of application arises between a state sectoral collective agreement and a regional one, the regional one will take precedence.
And if there is no agreement or legal representative of the workers?
Secondly, if there is no collective agreement applicable to the company or it does not regulate the right to digital disconnection, its content must be negotiated between the company and the workers’ representatives in the company itself [LO3/2018, art. 88.1].
Finally, if there are no legal workers’ representatives, the company must negotiate these measures directly with the workers [ET, art. 4.1.d; L31/1995, art. 34.1].
Internal protocol for digital disconnection at work
Technological tools
Company policy
As an employer, you are obliged to draw up an internal policy defining the procedures for exercising the right to disconnect and the training and awareness-raising activities for staff on the reasonable use of technological tools, in order to avoid the risk of computer fatigue.
This internal policy must be in line with the requirements of the collective agreement or as agreed with the employees or their representatives.
Report of the WLR.
The workers’ representatives have the right to issue a non-binding report within 15 days [ET, art. 64.5] , so this period should be allowed to elapse before the internal policy is drawn up and definitively implemented.
Content of the digital disconnection protocol
Examples.
Although, as indicated above, there is no mandatory minimum content, here are some examples of clauses added in collective agreements and internal protocols to date:
- After the end of their working day, employees shall have the right not to respond to any communication, regardless of the medium used (email, WhatsApp, telephone, etc.).
- Those who have responsibility for a team of people must comply in particular with the digital disconnection policies, as this is a reference position with respect to the teams they coordinate.
- Line managers shall refrain from requiring a response in communications sent to employees outside their working hours or if they are close to the end of their working hours. This is provided that such a reply involves actual work that may encroach on the employee’s rest time.
Non-compliance with the right to digital disconnection at work
Sanctions.
Infringement of the right to digital disconnection may be subject to sanctions by the Labour Inspectorate. Thus:
- Non-compliance with the right through conduct such as contacting the worker outside working hours, on weekends, during holidays, etc., may be sanctioned with a fine of up to 7,500 euros per workplace [LISOS, art. 7.10].
- The Labour Inspectorate has even fined a company 25,000 euros for this breach, considering that it violated the workers’ right to privacy [LISOS, art. 8.11] . However, this interpretation has not yet been validated by the courts.
Recommendation.
If you need to send e-mails outside employees’ working hours, put in place a ban on checking e-mails until the next day or install software that does not allow access outside working hours. This way you can defend that you are not violating the right to digital disconnection.
Rest breaches
It is possible that, in addition to the above non-compliance, a worker’s obligation to answer a call or an e-mail may violate his or her right to a minimum weekly rest period of one and a half uninterrupted days or rest between workdays of 12 hours, or even exceed his or her maximum daily working day of 8 hours. In such a case, and in addition to the above, a fine of up to 7,500 euros per workplace may be imposed [LISOS, art. 7.5] .
Overtime: When this obligation to work outside working hours exceeds the ordinary working day, it may be considered as an extension of the working day. In this case, it must be recorded as overtime and paid or compensated as such.
Lack of policy development
No sanction
At present, there is no regulation that provides for a sanction if the policy is not drawn up or is drawn up without the minimum content required by law, the collective agreement or the agreement reached within the company. Therefore, the Labour Inspectorate will not be able to issue an infraction report. However:
- If it has not given a hearing or has not informed the legal representatives of the workers and, therefore, does not comply with the requirements analysed in the cases of drawing up the internal policy on digital disconnection, it may be sanctioned with a fine of up to 7,500 euros [LISOS, art. 7.7] .
- The same amount will be imposed for failure to inform the workers’ legal representatives of the criteria for the use of digital devices for company monitoring.
Remember that the obligation to provide information or a prior hearing is not equivalent to a duty to reach an agreement with the workers or their representatives.
Compensation for moral damages.
The courts have rejected that damages should be paid for these breaches, as working time or rest breaks are not a fundamental right enshrined in the Constitution. For such compensation to be payable, the worker would have to prove a breach affecting his health to a degree that would threaten his life or physical integrity.
