Off the clock: a global right to digitally disconnect?
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John van der Luit-Drummond is editor of International Employment Lawyer

Although remote working has been instrumental in safeguarding employment and the global economy during the covid-19 pandemic, the combination of long working hours and higher demands on workers has led to concerns over mental and physical wellbeing.

Since the crisis began, home working has increased by almost 30% across Europe. Research by Eurofound shows employees who regularly work from home are more than twice as likely to surpass Europe’s 48-hour working week, compared to those working on their employer’s premises. Almost 30% of homeworkers report working in their free time every day or several times a week, compared to less than 5% of office workers.

It has also been reported that lawyers and consultants are “suffering burnout” after working longer hours in isolation, with firms fearing the loss of junior staff as demand for corporate advice continues to rise during the coronavirus crisis.

Several countries have already granted workers the right to disconnect from work, but while such laws have obvious benefits – both for employers and employers – they are also challenging for some organisations, especially when it comes to assessing worker performance.

All work and no play

Implemented in January 2017, France became the first country to legislate for digital disconnection, a right closely linked to the right to personal and family life and subject to a mandatory negotiation with unions. In the absence of any agreement with a union, an employer must set a company policy that includes provisions aimed at regulating the use of electronic communication.

“Depending on the business sector and the source of the right to disconnect – unilateral undertaking or collective bargaining agreement – the measures vary greatly,” explains Nicolas Léger, a partner in Proskaeur Rose’s labour and employment law department.

“Some companies add a statement in email signatures, such as, ‘With the exception of any urgent situation, please do not consider this email if received out of your normal working time or during a leave period’. Others opt for an interruption of emails between 8pm and 7am. Another option is to monitor electronic activity and contact employees sending more than a certain number of emails outside normal working hours, to discuss their workload.”

In February 2017, the Philippines’ Department of Labor announced that its nation’s workers may also disregard work-related communications outside of office hours and those who choose to do so should not be subject to disciplinary action.

The announcement was made after the filing of House Bill 4721, which aimed to draw a line between work and home life. However, three years later, the Philippines still does not have legislation in place. Instead, general labour law applies.

“Employees have the discretion to choose when to respond to work requests that they receive outside of their shifts. It is important to note that certain employees, for example, office-based rank-and-file employees, are entitled to overtime pay under general labour law if they work outside of their office hours,” explains Kenneth Chua, head of Quisumbing Torres’ employment practice.

“In those circumstances, if employees respond to work requests after their shifts have ended, they should receive overtime pay. On the other hand, if employees wait until their work shifts have started before responding, employers may not penalise them for the ‘delayed’ response.”

Smart working

Six months after its adoption into French law, Italy allowed its workforce to disconnect from electronic work devices without fear of disciplinary action. The so-called Smart Working law accords employees with more flexibility and autonomy in the choice of spaces, times, and tools to carry out their employment, but also greater accountability for the results of their work. 

“Due to the absence of time constraints that characterise remote working, the relationship of trust between the parties and the necessity to adapt the method of assessing employees’ performance becomes essential aspects considered by employers,” explains Emanuela Nespoli, a partner at Toffoletto De Luca Tamajo e Soci.

“It is fundamental to note that employees on smart working are required to respect the limits of the maximum duration of daily and weekly working hours, while also having the right to disconnect.”

Following in the footsteps of France and Italy, Spain became the next EU member state to legislate for a right to disconnect from the workplace in December 2018. The regulations aimed to protect workers’ health, guaranteeing “rest time, leave, and vacations”, as well as the protection of workers’ personal, family, and work balance.

“All companies, whether public or private, that provide their employees with technological tools to perform their job duties are obliged to introduce an internal policy aimed at employees on digital disconnection outside of working hours,” says Rubén Agote, a partner at Cuatrecasas.

“This duty is particularly relevant in cases where digital devices enable workers to work outside of working hours and outside the workplace, or remotely – for example, cell phones, smartphones, tablets, and laptops – or from home, whether part-time or full time.”

Agote explains organisations must distinguish between workers according to their profile, characteristics, responsibilities, hierarchical position, and duties, as well as specify any necessary conditions and exceptions according to a company’s requirements.

“It is to be assumed that greater flexibility should be granted to workers that, owing to their profile, position, or hierarchical position, are required to offer increased availability or work flexibility, such as workers holding management or middle management positions, and workers on call that receive pay for standby duty.”

Any act, conduct, decision, retaliation, or obstruction from the employer that violates these rights will be presumed to be discriminatory

However, despite the obvious benefits to employer and staff, the right to digitally disconnect is rarely sufficiently covered by collective bargaining agreements, says Agote. “There is no doubt about the advantages of having a digital disconnection plan implemented in the company, and not only to avoid potential fines by the competent authorities, but to ensure the health and wellbeing of workers at a time as relevant as the current one in which technological tools play such a relevant role at work.”

Taking inspiration from Europe, Chile became the first non-EU country to legislate a right to disconnect in 2020, a move that was followed by Argentina a few months later. Despite significant resistance from employers over increased labour costs due to covid-19, the government in Buenos Aires recently passed new home office legislation that will come into force in April 2021.

“By virtue of such right, employees are entitled to disconnect from digital devices outside of their working hours and during leave periods,” explain Analía Duran and Mercedes Balado Bevilacqua of MBB Balado Bevilacqua Abogados. “The employer may not require employees to perform tasks, take calls, reply emails, or send them communications, by any means, outside of working hours.”

As Duran and Balado explain, an exception is made when the company is carrying out activities across different time zones or in cases where sending communications out of hours is essential for the business. In all cases, however, employees are not expected to reply until the beginning of their working day and employers cannot offer incentives to disregard this right to disconnection. Employees who care for minors, people with disabilities, or older adults with special needs have the right to perform their tasks at times compatible with their caregiving duties.

“Any act, conduct, decision, retaliation, or obstruction from the employer that violates these rights will be presumed to be discriminatory with the potential consequence of employees being considered constructively dismissed with due payment of severance compensation,” warn Duran and Balado. “Any worker who exercises the right to interrupt the task for reasons of care must communicate virtually and with precision when the inactivity begins and when it ends.”

Modern steam whistle

In January 2021, Tánaiste (deputy prime minister) and Minister for Enterprise, Trade and Employment Leo Varadkar published the Republic of Ireland’s first national remote work strategy, which includes a code of practice on the right to disconnect. However, details of the code’s content have yet to be revealed.

“Until some flesh is put on the bones of this proposal, it is difficult to assess how it will compare to the approach adopted in other jurisdictions,” says Niall Pelly, head of GQ|Littler’s Dublin office. “It is important to point out though, that even on the limited information provided to date, it looks like what has been proposed falls considerably short of what people may expect.

“The right to disconnect conjures up images of employees being able to refuse work after a certain time each day – essentially, a 21st century equivalent of the steam whistle announcing the end of a factory shift. However, if that is what people think has been proposed, then they are mistaken.”

As Pelly explains, rather than introducing new legislation – or amending existing law – the Irish government has merely directed its employment relations body, the Workplace Relations Commission (WRC), to draw up a code of practice on the right to disconnect.

“Because the WRC has no power to create law, this code of practice will necessarily be based on existing legislation and, by itself, will not be capable of direct enforcement by employees. In essence, the code of practice will not be able to go much further than directing or reminding employers to adhere to existing working time legislation on rest breaks, daily rest periods, and weekly working limits.”

Unintended consequences?

For Pelly, employers have always faced issues around employee availability, but the adoption of remote working, exacerbated by the pandemic, has led to many workers feeling pressured to work longer hours either to get ahead of, or just keep up with, their colleagues. The question must be asked whether the right to disconnect is a panacea to the problem or if a global adoption of such a right could have unintended consequences.

“A right to disconnect is seen as an antidote to an ‘always on’ culture,” says Pelly. “Used correctly, it potentially can provide a route to greater equality of opportunity. For example, if the culture of an organisation is that working late into the evening, every day, is actively discouraged, then there is less pressure on employees to log in at all times, and so less likelihood of an overwhelming gap developing between the hours worked by one employee, who perhaps does not have childcare responsibilities, and another, who does.”

However, there is a danger that, if imposed in an overly blunt way, digital disconnection will not take account of individual requirements of employer or employee. “The imposition of certainty on a mandatory basis generally arises at the expense of flexibility, and this equally applies to the right to disconnect,” says Pelly. “Some employees may prefer to take a few hours out of the standard working day to log on later instead. Some employers may have a pressing need for employees to be available at certain times to service customers in particular time zones.

“Most client-facing roles will have ups and downs in terms of workload, and the capacity of employees to fulfil those requirements within their normal working hours will also vary on a day-to-day basis. It is naïve to assume that a one-size-fits-all approach, imposed at a national level, will work for everyone.”

In referencing that it is “aware of the need to find the right balance”, the Irish government’s remote-working strategy document appears to be alive to this issue. However, it remains to be seen where that balance will eventually be struck by the WRC, or if Ireland will join the ranks of Canada, India, and New York City, which have all seen their right to disconnect legislation stall in recent years.  

Key performance indicator

How to effectively monitor a remote workforce and assess the performance of individual staff members has become a big headache for multinationals. In theory, workers’ right to disconnect could cause employers greater pain if they find themselves having to assess the performance of those staff who perform their duties to the requisite standard during the working day, against employees who work longer hours and complete their tasks to an even higher standard.

Hypothetically, an employer might naturally consider those employees working longer hours to be more dedicated, hardworking, and more entitled to promotion or higher wages than those who exercise their statutory right to disconnect and spend time with family. Would this lead to claims of workplace discrimination?

“Although the right to disconnect is conceived as an individual right, the employer cannot consider that a ‘workaholic’ employee opted out and waived their right to disconnect,” says Léger. “Indeed, the employer must take any necessary measures to protect the employees’ health, which includes monitoring of working time. Therefore, if an employee were to work ‘in excess’, the employer would have to warn him formally and discuss their workload. 

“Indeed, the employer could be held liable for any damages suffered by the employee as a result of excessive working time. In most cases, the intense activity of an employee can put pressure on others creating ancillary risks. In extreme situations, the employee could be sanctioned, should they refuse to reduce their working time.”

Léger also warns employers to consider whether overtime payments should be made and also ensure that the principle of equal pay for equal work is taken into account when assessing salaries. “An employer can still remunerate differently those employees with comparable functions and status, provided the difference of treatment is based on objective considerations, such as the achievement of goals, rather than based on the hours worked.

“The best option to objectively assess and remunerate employees working different hours, is to set on-target remunerations, which would apply in the same conditions to every employee belonging to the same professional category and to organise regular appraisal meetings.”

“When it comes to salary reviews or promotions, it seems appropriate that an employer should favour an employee who works longer hours, particularly where that translates into that employee generating greater revenue for the employer,” adds Pelly.

“There is certainly a possibility employees who are unable to work extra hours because of childcare responsibilities could argue they are being discriminated against. Equally, an employee who is expected to work late every day to cover colleagues who must leave to fulfil those responsibilities could potentially argue they are being discriminated against because they don’t have children.

“A delicate balance needs to be struck. To minimise these types of issues arising, employers should not use the number of hours worked as the sole determining factor for a promotion or pay rise and, instead, should focus on the quality of the work performed.”   

Greater remuneration for employees who do not comply with internal policies and work more hours than others does not entail, per se, discriminatory conduct in Spain

In agreement, Nespoli recommends employers adopt performance evaluation systems that specifically take into account the right to disconnect: “Employers need to define a system of employee evaluation based on their performance. In particular, targets and parameters should be identified to assess performance from a qualitative rather than a quantitative point of view. This could be achieved through the assignment of objectively measurable and short-term basis targets, linked to the implementation of specific projects.

“Moreover, employers could provide specific processes and procedures to manage the workflow and assess the consistency of employees’ activity with these procedures. The main focus for the employer should be on creating and implementing new rewarding systems based on the results of the employees’ activity rather than their time spent to reach those results.”

“Greater remuneration for employees who do not comply with internal policies and work more hours than others does not entail, per se, discriminatory conduct in Spain,” notes Agote. “Nevertheless, reviewing the company’s remuneration policy and practices from a gender perspective is highly recommended to rule out possible direct or indirect discrimination.”

For those employers considering introducing new policies on digital working, Agote suggests training and awareness-raising initiatives on the reasonable use of technological tools to prevent tech fatigue among staff.

To minimise exposure, and avoid accusations of discriminatory behaviour, employers should avoid granting better incentives or opportunities to on-site workers or remote workers who don’t exercise their right to disconnect or to interrupt their working day to perform caregiving tasks, suggest Duran and Balado.

“We recommend that clients should implement flex-time on remote working,” they say. “One way to implement this is to plan and establish jointly with employees, on a weekly or monthly basis, certain objectives or duties to achieve within a given time frame and having them create a schedule that complies with such goals.

“The combination of remote work with flex-time is generally well-received by employees, especially for those in charge of minors or adults with disabilities. Performance is generally high since flex-time brings additional incentives to perform duties without being unnecessarily stressed by a fixed schedule.

“This approach goes together with the right to disconnect since they aim to improve the balance between work and personal life. However, this requires a change in the culture and mindset of employers to understand the benefits of having employees evaluated for the accomplishment of goals rather than by a strict working-time schedule, especially with duties that, for their nature, are ideal for remote work.”

Leading by example

In February, Slovakia became the latest country to grant workers the right to disconnect after its parliament approved an amendment to the nation’s Labour Code. Meanwhile, European MEPs have called for a new EU-wide right to disconnect law to address the negative impact on employees’ work-life balance.

There should be little doubt among employers that legislative measures designed to increase worker wellbeing are growing around the globe. And, while all companies are concerned with having a competitive edge, multinationals might want to consider whether a firm-wide approach to working time could actually be beneficial to their business, especially when it comes to employee relations and talent acquisition.

“In the coming years, a change in the employment paradigm, a decrease in employment in sectors closely linked to face-to-face work, and an evolution of technologically prepared sectors for remote work are all expected,” says Agote. “Companies must be prepared to meet these challenges.”