Two years have now passed since teleworking truly became, for the first time, a compulsory choice, no longer just an alternative option. The early stages of the pandemic and the first widespread lockdowns had forced a great many individuals, offices and companies to rely on this type of solution. The emergency has provided a powerful impetus for radical change in the world of work.
One of the main issues, however, concerns is referred to as the ‘right to disconnect‘: a freedom to disengage, thus avoiding the muddling of our private and professional spheres of life. In this regard, Europe is somewhat scattered, despite the fact that the EU Commission has presented a proposal for a directive to regulate the use of digital tools, to define the ‘minimum conditions’ for exercising one’s right to disconnect and to put in place mechanisms for dealing with complaints or infringements.
Some European countries have enshrined the right to switch off the smartphone and others have banned e-mails from superiors after a certain time, while others have only suggested more or less detailed rules of conduct.
Italy is one where it seems most difficult to create a formal and substantial separation between private and professional life.
The first legislative nod to disconnection in Italy dates back to the 2017 law on agile work, which in fact refers to ‘agreements between the parties’ to define ‘rest times, and also the technical and organisational measures necessary to ensure that workers can disconnect from technological equipment’.
With the advent of the pandemic and the need to protect workers remotely, in May 2020 the Privacy Guarantor invoked for the first time the right to disconnect, without which, it says, ‘the necessary distinction between private and work spaces risks being blurred’. Decree No 30 of 13 March 2021 is the first to explicitly mention the ‘right to disconnect from technological equipment and IT platforms’ with a view to safeguarding the ‘rest time and health’ of workers. Finally, the national protocol on agile working was signed by 26 trade unions and employers’ organisations. The protocol states that, even if smart working is characterised by ‘the absence of precise working hours’, it is possible to organise ‘time slots’ and identify ‘disconnection slots’, which must be guaranteed by adopting ‘specific technical and/or organisational measures’.
Comparing the rest of the continent, however, one can see that there is no consistency of choice among the EU Member States. There are some scattered approaches.
Very similar to the Italian case, Irish law does not yet provide for the right to disconnect. The government, however, issued a ‘Code of Conduct’ in 2021, which would serve as a basis for bargaining and business rules. It serves to establish certain principles and duties of companies and employees. The guidelines of the code thus resemble a sort of ‘label’ on disconnection: out-of-hours messages are not forbidden, but they should not be the norm and should be in a tone commensurate with the urgency; it is even better if you can schedule them for the next day.
Until recently, Belgium also had a legislative vacuum on a par with Italy. In early February 2022, however, the government established the right for civil servants to stop answering e-mails, messages and phone calls outside their working hours. Unless there are ‘exceptional and unforeseen circumstances that require action that cannot wait’, for example an employee who is about to go on holiday and cannot wait until his/her return. But these are obviously rare and limited cases.
There are about 65,000 civil servants in Belgium, but the government has already made it clear that it wants to extend the rule to the private sector. The idea in Brussels is that it is necessary to protect the health of workers, but also to guarantee them rest so that they can be more concentrated and productive during working hours.
Beginning in November 2021, Portugal passed a law prohibiting the sending of e-mails and messages outside working hours, especially when it is a superior who has to send it to other employees. It is therefore an indirect protection for workers, a top-down prohibition.
A small exception is France, which had regulated the right to disconnect well before the pandemic. The Loi du Travail had even been introduced in France in 2016. In reality, this law is perhaps too limited: it only covers companies with more than 50 employees and there are no specific sanctions.
In countries where the right to disconnect is not recognised, such as Germany, companies act completely autonomously.
The lure of Europe
The European Union has been working for more than a year to fill this legislative gap and asymmetry between countries.
In its Resolution of 21 January 2021, the European Parliament called on Member States to ‘recognise the right to disconnect as fundamental’, because it is inseparable from the new models of work. The European Parliament has thus urged the Commission to present a proposal for a directive to ‘regulate the use of digital tools’, define the ‘minimum conditions’ for exercising one’s right to disconnect and to activate ‘mechanisms for dealing with complaints or infringements’.
While smart working has saved jobs and made it possible for several companies to survive the Coronavirus crisis, it has also blurred the distinction between private and professional life. And still too many people work outside their working hours.
“Those who regularly work in smart work”, explains the EU Parliament, “are twice as likely to work more than the maximum working hours set by the Working Time Directive as those who do not. Working and sitting in front of a screen for too long reduces the ability to concentrate, causes cognitive and emotional overload and can be the cause of migraines, eye strain, fatigue, sleep deprivation, anxiety or burn out. In addition, a static posture and repetitive movements can cause muscle tension and musculoskeletal disorders, especially in workplaces that do not respect ergonomic standards by not providing adequate chairs and desks, for example”.