Whether or not teleworking situations exist, it is essential that a digital disconnection plan is developed.
Of course, in the case of employees who work remotely, the provisions of Article 18 of the Remote Work Law (Law 10/2021, of July 9) must be additionally considered:
“People who work remotely, especially in teleworking, have the right to digital disconnection outside their working hours, in accordance with article 88 of Organic Law 3/2018, of 5 December. The obligation to guarantee disconnection implies limiting the use of technological means of business and work communication during rest periods, as well as respecting the maximum duration of the working day and any restriction on working hours according to the applicable legal or conventional regulations”.
Failure to comply with the obligation to prepare the protocol can be attributed to several factors:
* Lack of a culture of labor compliance in many labor instances: Failure to comply with the disconnection protocol is just one example of the need for improvement in labor compliance. Other examples include the absence of an equality plan, a harassment plan, psychosocial risk management, the daily record of working hours, the remuneration register, and the remuneration audit within the framework of the equality plan.
* Lack of a culture of work-life balance in many work environments: Those bodies with a well-established plan of work-life balance measures find it easier to develop the protocol, as they have a prior basis for its implementation, thus advancing the culture of work-life balance.
* Failure to comply with previous duties: The lack of compliance with previous obligations, such as the daily record of the working day, makes it difficult to implement the digital disconnection protocol.
Complying with these prior obligations is crucial to guarantee the right to digital disconnection.
Lack of clarity in the regulatory framework: Article 88 of the LOPDGDD is excessively generic, which can contribute to the lack of understanding and compliance by labor entities.
* Low number of complaints and legal pronouncements on the right to digital disconnection: Although there are few complaints and pronouncements in the courts regarding this right, some judgments, such as that of the National Court in March 2022, underline the importance of respecting the limits to the right to digital disconnection as established in collective bargaining or agreed between the company and workers’ representatives.
* Another added problem: training and awareness-raising actions; Five years later, and although we have many collective agreements expressly regulating the right to disconnect (albeit in a disparate way: some with a mere reference to the LOPDGDD and others do go further, even including good practices to facilitate the exercise of the right to digital disconnection), the issue of training and awareness-raising actions expressly required by art. 88 of the LOPDGDD remains an “unknown to be resolved” and a kind of “black hole”.
There is no guidance on how many training actions should be carried out or of what type or frequency of these measures and this is not being regulated well in collective bargaining (except for what may be agreed with the workers’ representatives).
At this point, regulatory development would be essential, since training is a crucial aspect and really without this training and awareness, the digital disconnection protocol (beyond formal compliance and clauses) can remain a mere “dead letter”.
Finally, it is essential that companies and, in particular, people managers become aware of the importance of complying with regulations and that they are committed to going further and taking advantage of the obligation of the protocol to establish a culture of healthy use of ICT in organizations.
In short, there is a long way to go and many pending duties in terms of the exercise of the right to digital disconnection in Spanish companies.
