The use of digital tools has helped contacts in labour relations, which has led to the false need to obtain an immediate reply to any doubt that arises and therefore has harmed the workers’ disconnection from working time and their rest time. 


This excessive connectivity can lead to labour risks such as stress and anxiety due to the mental burden that the lack of disconnection and excessive interference of work can cause to the other areas of life and hence regulations have been developed to protect the workers’ right to digital disconnection.

 
In the section on fundamental rights, Article 18.4 of the Spanish Constitution regulates the following: 

 

“The law must limit the use of IT to guarantee the honour and personal and family privacy of citizens and that they can fully exercise their rights”. 

 

In this respect, Act 3/2018 of 5 December 2018 on personal data protection and the guarantee of digital rights has regulated the right to digital disconnection within a working scope. 


Article 88 of the aforementioned law stipulates that all workers have a right to digital disconnection in order to guarantee they can take their rest time after their working hours and their personal and family privacy are respected. However, apart from regulating the employer’s obligation to provide an internal policy that defines training measures and courses and raising the staff’s awareness about reasonable use of technological tools, nothing else is regulated.


The legal structure of this right is quite brief; therefore, this right had been developed by means of collective bargaining and it has been regulated in the texts of collective bargaining agreements for implementation in employers’ practice. Moreover, doctrine and case law have been developing and interpreting the legal and collective bargaining regulations in this respect.
 

We can see what the Spanish courts have been ruling up to now.
 

What does the right to digital disconnection imply?


The court rulings are clear; the right to digital disconnection prevents the employer from imposing the obligation on its employees to be connected and reply to work questions after their working hours. 


The courts have supported the possibility for workers to disconnect their devices to avoid receiving messages during their rest times that prevent them from exercising their right to disconnection:

“Workers have a right to digital disconnection during their rest times, this means they can turn off their devices and means of communication so that they do not receive messages from the company or their work colleagues for work-related reasons”, (the judgement of the High Court of Justice of Madrid of 9 June 2021, Appeal number 318/2021)


A company sending messages after working hours has not been sanctioned up to now, providing the obligation is not imposed on the worker to reply to or deal with an order.


What have been the rulings of the Spanish courts this year?


The Spanish courts have recently ruled in contradictory ways, paying special attention to the policy the employer has implemented or the regulation in the applicable collective bargaining agreement in the company related to this issue.


The judgement of the High Court of Justice of Galicia of 4 March 2024, Appeal number 5647/2023 deemed that a worker’s right to digital disconnection had been violated due to the company sending emails in which it gave him work orders after his working hours.


In this case, two key factors must be considered: 

  1. The worker had sent notification to the company expressly requesting that no kind of message must be sent after his working hours and 
  2. The applicable collective bargaining agreement regulated both the duty of the company to abstain from contacting the worker and his right not to reply to messages from his employer or third parties, (colleagues, customers).
     

The lower court ruled in the same way as the courts have been ruling up to now, dismissing the claim and considered that the right to digital disconnection had not been violated since the emails sent by the company to the plaintiff through the service coordinator did not show there was any obligation to read or reply to the messages sent after his working hours.


However, the High Court of Justice of Galicia ruled in favour of the worker and, based on the regulation in the collective bargaining agreement applicable to him, in which the duty was stipulated that the company must abstain from contacting the worker; it admitted the right to digital disconnection had been violated.


Nevertheless, other courts have recently ruled that contacting the worker about issues that are not “purely” work-related during rest time did not violate his right to digital disconnection.


Furthermore, the same High Court of Justice of Galicia, in its judgement of 19 March 2024, Appeal number 167/2024, dismissed the claim filed by a trade union (CCOO) and stated that the employer’s duty to guarantee disconnection implied a limitation in the use of technological business communication and work resources during rest periods along with observing the maximum working hours and any limits and precautions related to working hours stated in the legal regulations or applicable collective bargaining agreement, but pointed out that by having sent messages to workers in a situation of temporary disability so that they were not excluded from the protocol for holidays, did not imply a violation of the right to digital disconnection.


The judgement of the High Court of Justice of Castile La Mancha of 15 February 2024, Appeal number 7/2024 ruled along the same lines, which stipulated that the company attempting to contact the worker during her sick leave in order to inform her that she could take some courses was not considered a breach or significant interference in the worker’s private life.


Therefore, as shown from the case law analysed above, the right to digital disconnection does not only imply that an obligation cannot be imposed on workers to reply to the company’s messages after their working hours, but the employer must, as far as possible, abstain from contacting its employees after their working hours.


Practical advice
 

The following measures must be adopted in order to comply with the obligations in the law and the collective bargaining agreements related to the right to digital disconnection:

  • A policy must be drawn up that will enable you not only to avoid the administrative fines that could be imposed due to breaching such legal obligation, but measures must also be adopted that, in addition to ensuring compliance with the law, are in line with the company’s productive needs.
  • When drawing up such policy, you should bear in mind that any vague or generic clauses could imply a ruling that the right to digital disconnection has been violated, (judgement of the National Court of 22 March 2022); therefore, the practical application of this right and the related measures must be clearly defined.
  • Suitable expert advice could help you ensure you have a digital disconnection policy that is in line with your needs so that it acts as your ally should any dispute arise in this respect.

 

Author: Lara Conde, lawyer | Labour Law at RSM