Since 2018 companies have had an obligation to guarantee employees' right to disconnect – that is, disengage from work-related electronic communications – in order to ensure that employees take daily and weekly rest periods and their annual leave.
While there are still many companies that have not implemented policies that guarantee this right to their employees, the first legal rulings tackling discrepancies in interpreting this right are beginning to emerge.
On 4 November 2020 the Madrid High Court of Justice clarified that employees' right to disconnect does not prevent employers from requesting employees to provide services outside their usual working hours.
An employee was instructed to undertake a two-hour online training course in his own time without changing his monthly working shifts.
The employee did not undertake the training and, as it was obligatory, was notified once more that he was required to take the course. The employee refused to undertake the online training course, insisting that the time used to do the course should be included within his monthly working shifts and hours. The employer disagreed and reiterated the obligation to do the training outside of his ordinary working hours.
The employee undertook the training after the deadline and the employer imposed disciplinary measures against him for disobeying instructions received from a manager, resulting in a three-day suspension without work and salary.
The Madrid Labour Court admitted the employee's claim and stated that his right to personal privacy as outlined in Article 18 of the Constitution had been infringed with regard to digital disconnection.
Dissatisfied with the labour court judgment, the employer filed an appeal on the grounds that this could not be considered an infringement because the time taken to do the online course was recognised by the employer as effective working time, even if it did imply overtime. Further, the employer held that the right to disconnect does not exist during working time, but rather during resting periods.
The Madrid High Court of Justice accepted:
- the employer's criteria that the employee's right to disconnect was compatible with the employer requesting certain work activities to be carried out after normal working hours; and
- that these requests could be of an obligatory nature.
The court ruled that:
- the employee had a right to disconnect during resting periods;
- this right is not infringed if the employer requests that remunerated and actual work takes place outside of normal working hours, because this is considered to be effective working time;
- if the work continues beyond the working day, it will be considered overtime; and
- if carrying out the work beyond the working day has an impact on the same, or on the agreed working hours, this would be considered a change in working conditions.
The Madrid High Court of Justice's decision is highly relevant because it clarifies that, if the time used is for effective work, despite this causing an extension to the working day and implying overtime, the right to disconnect does not apply.
