The right to disconnect: Real relief for employees or just additional obligations for employers? | In Principle

The digitalisation of work entails many benefits. In many professions work may be delivered from anyplace in the world, and in many industries talent can be sourced from all over the globe. For employers this is an opportunity for significant savings, and for employees it offers hope for a better work/life balance.

However, the widespread use of information and communication technologies has also exacerbated negative phenomena in the work environment or contributed to creation of new ones. Like a catalyst, the pandemic has accelerated this process.

The technology revolution has taken work out of the four walls of the workplace and allowed connectivity from anyplace in the world, including employees’ homes. Combined with an unprecedented acceleration of the pace of life, circulation of information and availability of “everything, everywhere, immediately,” this has led to the spread of a culture of 24/7 worker availability.

It has become standard practice to expect employees to respond to a business call or email promptly, or at the latest within 24 hours, even if they are taking a well-deserved rest from work. More accessible and responsive individuals have come to be seen as more engaged in work and even favoured over employees who, for family or health reasons, may not always be able to answer a phone call or email after working hours.

Forcing employees to work after their scheduled working hours often results from improper work organisation, or an effort to build the company’s competitiveness on the speed of service delivery, with simultaneous pressure to cut costs.

As a consequence, in the reality of the pandemic global economy, workers complain more than ever about the blurring of the boundary between work and private time, the unpredictability of working hours, the need to work outside agreed hours (usually without payment), and the resulting negative impact on their physical and mental health and private lives.

On 21 January 2021, in response to these challenges and associated risks to employee privacy posed by the intrusiveness of digital technologies, the European Parliament adopted a resolution calling for adoption of a directive establishing the right of workers to disconnect.

EU to protect workers’ rest

The key aim of the proposed new EU directive is to set minimum protection standards for all workers in the EU using digital tools for work purposes.

The point is to adopt legal solutions that will not jeopardise the benefits of digitalisation of the work environment, but will ensure effective protection of employees’ rights. As we emphasised in the introduction, remote work and the associated lack of rigid working hours may be a very beneficial solution for employees, especially for those who, for various reasons, are not able, or even do not want, to work in the 9 to 5 model. Paradoxically, for such people, the EU provisions and the national regulations adopted on their basis may do more harm than good.

The draft directive annexed to the resolution of the European Parliament provides for several main rules, which we discuss below.

After work—out of range. The “right to disconnect” refers to workers’ right “not to engage in work-related activities or communications by means of digital tools, directly or indirectly, outside working time.”

In principle, this means that an employee will be able to ignore emails, text messages, instant messages and telephone calls received outside working hours, during holidays or when on other leave, even if these communications do not require the employee to take any further action (but only, for example, to confirm some fact, provide information, or indicate a contact to another person), without fear of the employer’s reaction. Bearing in mind the wording of the preamble to the proposal, this definition of the right to disconnect is intended to guarantee workers, in particular, the possibility of genuine rest by providing an almost idyllic “freedom from thinking about work” outside working hours.

Employee’s right, employer’s duty. The employee’s right will be matched by an obligation on the employer’s part to undertake activities ensuring that subordinates are guaranteed the exercise of this right. The employer’s duty will consist of a number of specific obligations indicated in the directive, including:

• Establishing objective, reliable and accessible systems for measuring working time that will not infringe the worker’s right to privacy. It appears that this condition may not be met by, for example, any technologies using GPS or other methods of tracking an employee, as it could potentially reveal employee data regarding for example his or her political views, sexual orientation or religion.
• Adopting fair, lawful and transparent procedures for realisation of the employees’ right to disconnect. It seems that the draft directive does not explicitly impose organisational or technical solutions in this respect (in our opinion rightly so, as their uniform implementation would be unrealistic). However, on the other hand, the directive would call on member states to impose “practical arrangements for switching off digital tools for work purposes,” which may indicate what types of solutions will be preferred. Leaving employers relative freedom to shape their internal policies should be viewed positively, as it would allow them to tailor procedures to the specifics of the given workplace. Also, it is a good starting point to look at how many employees are affected by the problem of after-hours work and the reasons for this (e.g. working with clients from a different time zone, poor work organisation, uneven workload within the team or, finally, reconciling family responsibilities and work).
• Carrying out an occupational health and safety assessment with regard to the right to disconnect, taking into account psychosocial risks.
• Undertaking various awareness-raising measures so employees learn of the ability to exercise their right to disconnect, including organising training in this field. Notwithstanding this, the employer would also have to inform each employee in writing of his or her rights and the company arrangements adopted to guarantee the exercise of these rights. This is a key point, because one of the things that stands in the way of fully disconnecting from work is the lack of awareness on the part of both supervisors and employees themselves that an employee has no obligation to respond to phone calls or emails outside working hours. Supervisors often seem oblivious to the notion that contacting subordinates after work hours might violate the employees’ right to rest. On one hand, employees do not know their rights, and on the other hand, they are convinced (not always reasonably) that they are expected to respond immediately. An unambiguous message from the employer that employees have the right to “switch off” will help to develop new rules for communicating with employees.

The right to disconnect is equal for all. It is the intention of the European Parliament for the right to disconnect to be available to all workers using digital tools for work purposes, regardless of their status, how their work is organised, the industry, or the sector (public or private). Therefore, the draft does not provide for any subjective exclusions, e.g. due to company size (number of employees) or the employee’s position.

In particular, the proposal does not expressly provide for exceptions for sectors in which the lack of contact with the worker might have particularly serious consequences (e.g. critical infrastructure companies or medical establishments) or for management staff, but it does refer to the Community provisions on working time, where such exceptions are provided for. Such legislative intervention could be interpreted as a possibility of not applying, or modifying the scope of, the right to disconnect in the case of workers mentioned in these Community and national provisions.

Granting the right to disconnect to, for example, management staff is understandable in view of the purpose behind introduction of the right to disconnect (after all, managers also need physical and mental rest from work), but in practice, implementation of this right in the case of managers will be quite a challenge. As the EU regulations provide for specific derogations for managerial employees with regard to working time limits and minimum rest, it would be difficult to determine the point in time from which a manager could exercise his or her right to disconnect.

Derogations only in exceptional circumstances. Any derogation to the right to disconnect would be permitted only in exceptional circumstances, such as force majeure or other emergency, and any exercise of such a derogation would have to be justified to the employee in writing. It is worth considering whether requiring written justification is too far-reaching and would simply become another dead letter. It is reasonable to assume that in most emergencies, it will be crucial to contact the employee as soon as possible. In practice, such written justification would be provided, if at all, after the fact, when the employee has already been engaged in professional activities after working hours.

States will establish criteria for derogations and compensation. Member states would be required to lay down the criteria for derogating from the worker’s right to disconnect and how compensation would be determined for breach of that right. It may not be an easy task to compile such a catalogue, as it is difficult to list exhaustively the exceptional cases that may arise at work. As far as compensation is concerned, in view of the objective pursued by recognition of the right to disconnect, it can be assumed with high probability that, also in view of the conflict between the interests of the local social partners, member states will in the vast majority decide to require the employer to grant the employee an equivalent period of rest in lieu of the violated right to disconnect, and only if it is objectively impossible to grant such a period to compensate the employee adequately in cash.

Protection against discrimination. Employees are to be protected against discrimination based on the employee’s availability, less favourable treatment, dismissal or other adverse treatment in retaliation for exercising or wishing to exercise their right to disconnect. So, not only will employees have the right to disconnect, but also, and this may be even more important in practice, they will be protected from sanctions for their lack of availability. On the other hand, the employer will also not be able to reward or promote subordinates for staying in constant contact with the company. In view of the genuine difficulty of proving that an employee was subjected to unfavourable treatment in the exercise or enjoyment of his or her rights, the directive would shift the burden to the employer to prove that the difference in treatment of the employee was based on other grounds, as in the case of discrimination based on criteria other than the employee’s availability.

Sanctions for violations. The member states are to provide for effective, proportionate and deterrent sanctions for breaches of employers’ obligations relating to the employee’s right to disconnect.

It can be assumed that the Polish parliament may regulate such sanctions in two ways. The violation of obligations relating to implementation and observance of the right to disconnect may be treated in the same way as other violations of working time regulations (threatened with a fine up to PLN 30,000). The employee’s availability (or exercise of his or her right) may also be considered a discriminatory criterion; in the event of discrimination on this basis, the employee would be entitled to compensation in an amount not less than the applicable minimum monthly wage (PLN 2,800 in 2021).

In July 2018, France’s highest court ordered the UK company Rentokil Initial to pay EUR 60,000 to a former employee for violating his right to disconnect. It was the first case of its kind after introduction of the right to disconnect into the French legal system. In our opinion, it is doubtful that such compensation paid in Poland would be as high.

The right to disconnect in Poland

In Poland, an employee’s separate right to disconnect has not been introduced, but such a right may be derived from general provisions on working time and from the case law of the labour courts and the Supreme Court.

In principle, an employee is not required to answer the phone or respond to emails after working hours or during vacation. An exception is when the employee is obliged to perform on-call duty, i.e. to remain ready to work outside normal working hours (in a place indicated by the employer, including at home). The on-call time must not interfere with the employee’s right to daily or weekly rest. Also, it should be compensated by time off or payment (except for a situation when the on-call duty is performed at home).

What are the penalties for an employer who prevents an employee from resting?

Engaging subordinates in professional matters outside working hours may be considered an instruction to work overtime, particularly if an employee must complete additional tasks as a result of a contact (responding to an email from a supervisor or customer or a business phone call should also be considered completion of a task). Working overtime must be compensated with time off or extra pay.

Forcing an employee to work overtime may violate the employee’s right to daily and weekly rest, which is punishable by a fine up to PLN 30,000. In the event of contact with an employee on leave, depending on the circumstances, the employee may believe that the employer has recalled him or her from leave and potentially seek reimbursement for expenses incurred as a direct result of the interruption of leave. In addition, the employee may request that the unused leave be granted at another time.

The discussion on the right to disconnect in Poland is not advanced yet, and currently there are other priorities, including dealing with the ongoing pandemic. It can be assumed that this topic will be more widely discussed in the media after adoption of the directive and then after the Polish authorities have proposed national legislative solutions on this subject.

This article is part of a longer report entitled “The Right to Disconnect.”

Dr Szymon Kubiak, attorney-at-law

Katarzyna Magnuska, attorney-at-law