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On December 7, the Spanish Act on Data Protection and Guarantee of Digital Rights came into force and, in addition to other employment-related matters, it legally recognizes (for the first time in Spain) what is known as the right to digital disconnection within the scope of the employment relationship (article 88). It is certainly a new legal development, although there are significant precedents, such as the case of France (where it was legally established as part of businesses’ obligation to negotiate the exercise of the right to disconnection on a yearly basis), or in the case of some companies, as in the Axa collective bargaining agreement.
Although it is recognized in a Spanish act (given its connection to fundamental rights such as physical integrity and privacy), it is a non-labor regulation. Although this is not the first time that a non-labor regulation includes provisions that clearly affect labor rights, this should draw our attention to the need to closely watch any regulations that may be approved, even more so during a time of change in the Spanish government.
Also, and examining the provision in more depth, the French inspiration of the configuration of the right is obvious. We must highlight both the lack of definition of the right to disconnection and the lack of details about its contents. This was also the case in France, where the social agents and, ultimately, the businesses were brought in to define the contents and exercise of the right to digital disconnection. This is also what the Spanish lawmaker does in articles 2 and 3.
However, there is a significant difference with regard to French legislation: in Spain, the lawmaker has been “blunter” and has opted for a clear and express provision regarding the existence of workers’ right (“Workers and public employees will be entitled to digital disconnection […]”. Therefore, although a minimal legislative framework has been selected to cover digital disconnection (which will allow businesses to implement it based on the particular nature of their industry and business situation), it seems difficult to merely state that, in absence of the modalities of exercise, the right to digital disconnection is non-existent. However, and in line with what has been stated, we do not know what the minimum content of this right will be.
The reason for its regulation is defined as twofold: first, the protection of workers’ health, as it intends to guarantee their “rest time, leave and vacations”; and second, the protection of the workers’ “personal and family privacy.
The regulatory provision establishes that “the modalities for the exercise of the right” will be subject to that established in the collective bargaining agreement or, in its absence, in a company agreement. The employer is also attributed the role of designing, after hearing the workers’ representatives, an internal policy to determine the modalities for the exercise of the right to disconnection, so that, as we see it, the company will have to define the technical means to be used to guarantee the effectiveness of the right to disconnection.
There is a second basic obligation for the employer: to carry out training actions and awareness-raising activities on the reasonable use of technological tools. Therefore, it seems that the act is based on the premise that establishing standards for good use of digital devices is not enough, so training must be given.
As for the subjective scope, it is certainly broad, and we understand that the lawmaker intended to give it “general efficacy” by stating that the business policy on the right to disconnection must be aimed at all workers, “including those in management positions” (without specifying whether it means ordinary workers in management positions or senior management strictly speaking).
In short, the act poses several controversial questions: What happens if the workers’ representatives disagree with the measures adopted? Is it mandatory to meet the actions included in the business policy? What happens if the company does not design an internal policy to define the modalities for exercising the right to disconnection?
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