The Digital Disconnection Policy

The right to digital disconnection is a workers’ right, arising from the evolution of new technologies; which allow constant connection, also in the field of work.Now that we’re well into the summer holidays, we want to talk to you about a policy that serves to mark, very clearly, the boundaries between work time and workers’ personal and family time: the Digital Disconnection Policy.

What is the right to digital disconnection?

It is the right of all employees not to connect to any digital device, of a professional nature, during their breaks or outside of work hours (this includes vacations and leaves).

Therefore, this right entitles workers not to respond to e-mails, calls, WhatsApps, video calls or any type of digital communication outside of their working day.

This right applies to all employees; regardless of the type of work (on-site or remote work), type of contract or any other specific employment condition.

It is also advisable to include an explanation of this right in your staff training, as we discussed in this post.

In addition to a legal obligation, this is a basic right for well-being and productivity. It helps reduce stress and burnout, as employees can rest and recover from work demands.

This break helps improve work-life balance, fostering healthier relationships and greater life satisfaction.

It also promotes creativity and efficiency, as a rested and motivated worker performs better.

It also promotes a healthier working environment, where rest periods are respected and people’s overall well-being is valued.

Which laws include the right to digital disconnection?

Spain is one of the few European countries that recognize, by law, the right to digital disconnection.

The Spanish Constitution (CE) serves as a basis for articulating this right; since, in the first paragraph of article 18, the right to honour, personal and family privacy and own image is guaranteed.

In addition, the fourth section of the same article is more specific and limits the use of computers in order to guarantee the honour and personal and family privacy of citizens and the full exercise of their rights.

In the labor sphere, we find that the Statute of Workers (ET) is more specific when talking about the rights of employees in matters of privacy; in relation to the digital world and disconnection.

Thus, article 20 bis of the ET recognizes to employees their “right to privacy in the use of digital devices made available to them by the employer, to digital disconnection and to privacy when using video surveillance and geolocation devices in the terms established in current legislation on the protection of personal data and the guarantee of digital rights”.

Finally, we must talk about the Organic Law 3/2018, Protection of Personal Data and Guarantee of Digital Rights, which dedicates an entire Title (Title X) to guaranteeing digital rights: apart from the right to digital disconnection, it also includes the right to internet neutrality, universal internet access, digital security, digital education, protection of minors, internet rectification, the updating of information in digital media, the right to privacy and the use of digital devices at work.

Thus, article 88 of the LOPDGDD establishes:

1. Workers and public employees have the right to digital disconnection to guarantee, outside of legally or conventionally established working time, respect for their rest time, permits and holidays, as well as their personal and family privacy.

2. The modalities of exercising this right will take into account the nature and purpose of the employment relationship, will promote the right to the conciliation of work and personal and family life and will be subject to the provisions of the collective bargaining agreement or, failing that, to what was agreed between the company and the workers’ representatives.

3. The employer, with a prior hearing of the workers’ representatives, will draw up an internal policy aimed at workers, including those who hold managerial positions, in which they will define the modalities for exercising the right to disconnection and the training and sensitizing staff on a reasonable use of technological tools that avoids the risk of IT fatigue. In particular, the right to digital disconnection will be preserved in cases of total or partial remote work as well as at the employee’s home linked to the use of technological tools for work purposes.

Why a Protocol?

The best way to encourage the digital disconnection of your employees (outside of work time) is through a Digital Disconnection Policy.

Before drawing up the Protocol, the company’s situation must be analysed: timetables and the policy of communications with employees outside their working day.

The regulations establish that the Digital Disconnection Policy must be made after consultation with the legal representation of the workers (in order to negotiate with them the measures to be adopted).

However, the regulations do not state that it is mandatory for the company to reach an agreement with the employee representatives, and therefore your company could unilaterally draft the Protocol.

To promote the conciliation of personal and family life with work, and to guarantee workers’ rest, the Protocol expressly recognizes their right to digital disconnection once they have finished their working day.

For this reason, this document defines the rules for the proper use of technological tools, including implementation actions and review measures.

What happens if companies do not respect this right?

If you violate this right, the Labor Inspectorate has the power to fine you which, depending on the severity, can range from 751 to 7,500 euros.

Before very serious cases; if it is proven that the company contacts repeatedly (and, therefore, it could be considered as workplace harassment), the penalties could reach up to 225,018 euros.

To analyze the degree of intrusion committed by the company on the employee, Treball observes the existence (or not) of an urgent need that justifies writing or calling the employee.

Author: Sandra Santiago, Lawyer.

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