Always on: no longer an acceptable policy

The European Parliament voted in early 2021 for the Commission to propose a law that would allow those who work digitally to disconnect outside working hours. While there is still no legislation regulating digital disconnection in Europe, it has already been partially addressed through various Directives, such as the EU's Working Time Directive (2003/88/EC).

The right to digital disconnection of workers was regulated for the first time in Spain through Article 88 of the Organic Law 3/2018, of 5 December, on the protection of Personal Data and guarantee of digital rights (hereinafter referred to as “LOPDGDD”). By virtue of the aforementioned article, workers and public employees will have the right to this disconnection in order to guarantee respect for their rest time, leave and holidays, as well as their personal privacy. This right is intimately linked to the prevention of workers' health and the protection of rest time, which in turn presents a double face: as a right and as an obligation to be guaranteed by the company, although it shows a content that needs to be specified given the parsimony and generality of its legal wording, both in article 88 LOPDGDD and in article 20 bis of the Workers' Statute (“ET”).

Consequently, it is a right that can be directly enforced and, at the same time, is has a very flexible design, which in turn affects other rights such as the right to work-life balance, privacy or risk prevention. A recent ruling by the High Court of Justice (hereinafter “TSJ”) of Madrid made this clear by overturning the dismissal of an employee who did not check his corporate email during his days off and did not see an important message. In the dismissal, the company alleged various causes, including indiscipline and disobedience.

The employee - a service technician - was dismissed in September 2020. During the months of July and August, he received a series of four messages containing work instruction which he did not comply with until his return to his job, a month and a half later. The company argued that this was a behaviour that constituted grounds for a disciplinary dismissal due to disobedience at work, a cause supported by the Workers' Statute for the dismissal of an employee, but the TSJ rejected this thesis since ignoring emails during rest days is a conduct in accordance with the worker's right to digital disconnection. Moreover, it was pointed out by the Court that the emails received could not be classified as orders from the company and could not therefore constitute grounds for a disciplinary dismissal.

Ultimately, the TSJ classifies the dismissal as unfair and forces the company to reinstate the employee – and pay him the processing wages, which exceeded 18,000 euros – or to pay him compensation in excess of 11,500 euros.