New digital rights: employees' right to disconnect

Introduction
Application of right to disconnect

Introduction

The new Data Protection Act entered into force on 6 December 2018, introducing a number of so-called 'digital rights' (for further details please see "New Data Protection Act introduces digital rights for employees").

In addition to codifying employees' right to privacy when using digital devices at work (for further details please see "New digital rights: employees' right to privacy in use of digital devices at work"), the act has established the right of employees, including civil servants, to disconnect from their work devices. This right aims to guarantee employees' rest, leave and holiday time, as well as their right to personal and family privacy. Spain has followed France's lead with the introduction of this right, which was not previously provided for in Spanish law.

Application of right to disconnect

Under the Data Protection Act, the application of an employee's right to disconnect must observe the nature of their particular employment relationship and promote their right to a work-life balance. This first requirement implies that with regard to the particularities of each employment relationship, the implementation of the right to disconnect may be flexible or even inapplicable where the employer-employee relationship does not allow it.

In addition, the law establishes that the right to disconnect is enforceable for employees in managerial positions.

The provision concerning how this right should be exercised is general. As such, the legislature has left it up to employers to define each employee's right to disconnect in their collective bargaining agreement (or, in the absence of a collective bargaining agreement, their employment agreement). Thus, the specific measures to be adopted in order to guarantee this right must be negotiated by employers and their employees. Nonetheless, such measures must comply with the Data Protection Act (eg, they must comply with rest, leave and holiday allowances).

Further, the act requires employers to implement – following consultation with employee representatives – an internal policy geared towards employees (including employees in managerial positions). This policy must include arrangements for:

• employees to exercise their right to disconnect; and
• training on the reasonable use of digital devices.

This policy is intended to prevent technological fatigue and must observe and regulate the right of employees who work remotely (particularly those who work from home) to disconnect.

For further information on this topic please contact César Navarro at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.