The Right to Disconnect: the evolution of European work regulation

The idea of the “right to disconnect” stems from the progress of information and communication technologies (ICT) and the increased use of digital devices in people’s working lives, leading to the spread of teleworking. On the one hand, both workers and employers could benefit from digitalisation in terms of autonomy and flexibility. A correct use of such technologies could grant more independence in terms of work organisation, also reducing commuting times, potentially leading to a better work-life balance. On the other hand, there are also some risks linked to an excessive and inappropriate use of these tools. The latter has already produced a “constantly on call” culture, making the line dividing work and private life less clear and thus worsening workers’ conditions of employment.

The Covid-19 pandemic has now made teleworking widespread, pushing our societies towards a large-scale experimentation of a new way of working. Remote working has indeed been helpful to protect employment, businesses, and productivity. However, the abovementioned problems arose, leading the European Parliament to take action in order to ensure the right to disconnect. On 21 January 2021, the EP approved a resolution – under art. 225 TFEU which provides the EP with the right to ‘suggest’ legislative initiatives – with recommendations to the Commission, demanding a directive on such matter.

Spread and problems of teleworking

As anticipated, since the outbreak of the pandemic the number of people working from home increased significantly. Eurofound has ran a research on the changing nature of work during Covid-19, conducting two rounds of an e-survey in April and July 2020 and published a report: “Living, working and Covid-19” . It has been found that 37% of employed people in the EU started working from home during lockdowns, compared to an estimation of 5% before the pandemic. This saved many jobs, yet 27% of the respondents reported to have worked during off hours to meet work needs. As such, the risk of exceeding the 48-hour regular working week is twice as high for those who work remotely, compared to people who do not, as emerges from the research report “Regulations to address work–life balance in digital flexible working arrangements” (4). These figures signal a blurring of the boundaries between private and work life, the possible negative consequences of which must be taken into account. Namely, there could be serious repercussions on both the physical and mental health of workers and risks of inadequate remuneration. What appears to be greater flexibility might in fact end up turning into work intensification and overwork.

The aim behind the decision of the EP to intervene in this context, is to counter these threats to the working conditions of European citizens. The parliamentary rapporteur Alex Agius Saliba effectively summarised the value of such measure in his statement following the approval of the resolution: “We cannot abandon millions of European workers who are exhausted by the pressure to be always ‘on’ and overly long working hours. Now is the moment to stand by their side and give them what they deserve: the right to disconnect. This is vital for our mental and physical health. It is time to update worker’s rights so that they correspond to the new realities of the digital age”.

EU legal framework

The right to disconnect is currently not defined nor regulated at the EU level. Though, it is inextricably linked to other subjects that the EU has dealt with when it comes to workers’ protection. In particular, EU directives, the European Pillar of Social Rights and the ECJ case-law are relevant in this regard.

First and foremost, the EU working time directive provides limits to weekly working hours and rules about rest periods. Notably, it sets that the maximum average working time for each week is 48 hours and that workers have the right to at least 11 consecutive hours of rest every day and to minimum four weeks of paid annual leave. Besides, the EU directive on work-life balance for parents and carers aims at easing the reconciliation between work and family life. This directive requires Member States to adopt measures ensuring workers’ rights to paternity, parental and carers’ leave, as well as the right to demand flexible working arrangements for caring reasons. Furthermore, the European Pillar for Social Rights sets out twenty key principles to follow in order to achieve a social, fair and inclusive Europe. Particularly, principles number 9 on work-life balance and 10 on healthy, safe and well-adapted work environment and data protection are prominent in relation to the right to disconnect.

The case-law of the CJEU also gives clarifications on crucial points regarding working, stand-by, on-call and rest time. These are relevant since, as mentioned, problems stemming from a lack of regulation of teleworking mainly concern the blurred distinction between professional and private life and overtime work. In this regard, in Matzak (paragraph 66)  the CJEU ruled that stand-by time spent at home by a worker, who has the obligation to answer to calls from the employer within a short time, therefore limiting considerably the possibility of carrying out other activities, must be considered as “working time”. Moreover, in Pfeiffer and others the CJEU stated that on-call time “where the worker is required to be physically present at a place specified by his employer, must be regarded as wholly working time” (paragraph 93). The Court also commented on the importance of minimum rest periods, defining them as necessary for protecting workers’ safety and health. In line with this, in CCOO , it has also been pointed out that Member States have to require employers to create systems allowing to measure the daily working time of employees (paragraph 71).

In sum, the EU had not yet dealt with the right to disconnect to any great extent up to now. However, under the impetus of digitalisation, significant changes in the nature of work have been occurring in recent times. Thus, the existing European rules covering workers’ rights and protection need to be updated to that end.

The resolution of the European Parliament

As previously mentioned, the EP adopted a resolution, addressing the Commission with a request for a legislative proposal. In the document, it is stated that “The right to disconnect refers to workers’ right not to engage in work-related activities or communications outside working time, by means of digital tools, such as phone calls, emails or other messages”. Across the EU, governments have addressed in different ways and to different extents teleworking and the challenges it poses. For this reason, the aim of the proposed directive is to set minimum requirements to ensure that people who use digital tools and ICT for work purposes exercise their right to disconnect. In this way, Member States will be able to adopt more favourable laws if they intend to.

The EP also stressed – consistently with the Court’s abovementioned judgement – the necessity to set up schemes to measure the duration of time worked every day by each worker, while respecting their privacy and personal data protection. In this regard, Eurofound reported that the majority of Member States have introduced laws to measure working time, that are generally applicable to all workers. Despite this, the situation of remote workers is different, it requires specific provisions, and only few countries introduced them. The proposal emphasises that all governments ought to act in this sense in order to solve the problem of overworking. To that end, it states that Member States have to guarantee specific working conditions by setting up, apart from the foregoing system for the measuring of working time, also practical arrangements to switch off digital tools for work purposes and assessments of health, safety and psychological risk in terms of right to disconnect.

Another crucial point concerns the protection of remote workers against adverse treatment. In particular, this entails that Member States have to make sure that “discrimination, less favourable treatment, dismissal and other adverse measures by employers on the ground that workers have exercised or have sought to exercise their right to disconnect are prohibited”. This is fundamental to fight the “always on” culture and to prevent that workers feel overburdened.

Regulation needs to keep up with the changing nature of work

Even though the recent spread of remote working is largely due to the implications of Covid-19, this is not likely to disappear when the pandemic will be over. The new model of development that the EU intends to achieve is strongly focused on the green and digital transitions. Indeed, work is set to evolve in such direction as well and regulation needs to adjust to new circumstances and face challenges. In addition, according to the mentioned Eurofound survey, in the July round, 78% of employees said that they would keep working from home, at least occasionally, even in absence of Covid-19 restrictions.

Almost one year ago, while talking about the European Recovery plan, the President of the Commission Von der Leyen stated “the European Green Deal and digitalization will boost jobs and growth, the resilience of our societies and the health of our environment”. As for digitalisation in particular, in order to reap all its benefits, safeguarding human capital is of momentous importance. As a conclusion, if telework is going to be what a large part of European workers will experience, laws will need to preserve their rights, health and working conditions.