For a long time, experts in human resources are aware that deserved rest improves productivity and creativity of workers. However, in a totally interconnected world, the difficult disconnection of work makes it difficult to produce the necessary conditions for a restful sleep and to recharge the batteries.
The Organic Law on Data Protection and Guarantees of Digital Rights has converted into law the right to digital disconnection, as a concrete manifestation of the right to rest for all workers.
In effect, before this regulation – and it is still valid after it – the general rule is that every worker enjoys a right not to be disturbed in his rest time (including permits and vacations). With the new regulations it is confirmed that this right "not to be bothered" includes the right not to receive emails, WhatsApp calls or messages from the boss outside of work hours.
The new norm does not configure this right as a prohibition to send emails or make calls outside working hours for the company, so it would still be entitled to do so. On the other hand, what the regulation establishes is the power of the worker to demand that the company cease this behavior or, simply, not to respond to these requirements in the form of calls, received emails, which occur outside working hours. Also, as it could not be otherwise, the right includes the prohibition against retaliation by the company, when it is exercised.
- What about the liability charges?
Undoubtedly, not all workers in the company have the same degree of responsibility, and many of them need to be connected if a fire arises that they have to turn off, even outside their working hours. The company itself is keen that these are available in case of need, for the sake of organizational efficiency. How do these two interests, the right to rest and organizational needs of the company, come together?
Precisely, the harmonization of both interests is possible due to the legal configuration of the same as a right – not to receive electronic communications – and not as a prohibition for the company. The company must convince the worker, probably through a good salary, so that he does not exercise his right to digital disconnection. In short, one possibility would be for the company to pay a plus in exchange for the worker's commitment to answer calls, even outside of their schedule, if an emergency arises.
- Internal protocols and digital disconnection
However, not everything is a matter of paying workers well. The regulation includes the obligation for companies to establish internal protocols that define the times when it is prohibited to send emails, make calls, etc. This prohibition, as a general rule, should coincide with the worker's rest, leave or vacation schedule.
Additionally, the protocols must delimit exhaustively the causes that justify the interruption of that rest. That is, define what is considered urgent, depending on the level of responsibility of the functions of each worker in the company. It must be taken into account that the company could incur illicit sanctions in matters of prevention of occupational hazards of not writing and correctly applying such internal protocols.
All this with the aim of improving the reconciliation of private and family life with work and avoiding situations of burnout, that harm both workers and companies.
Adrián Todolí is a professor of Labor Law at the University of Valencia.