Whether or not there is any teleworking, it is essential to have a digital disconnection plan in place.
In the case of employees who work remotely, of course, Article 18 of the ‘Ley de Trabajo a Distancia’ (Spanish Remote Work Act, Law 10/2021 of 9 July) must also be taken into account:
‘Remote workers, particularly those who telework, have the right to digital disconnection outside their working hours, in accordance with Article 88 of Organic Law 3/2018 of 5 December. The duty to guarantee disconnection entails limiting the use of the company’s technological means of communication and work during rest periods, as well as respecting the maximum length of the working day and any limits on working time laid down in the applicable statutory or collectively agreed rules.’
Failure to comply with the obligation to draw up the protocol may be due to a number of factors:
* Lack of a culture of employment compliance in many workplaces: failure to comply with the disconnection protocol is just one example of how much employment compliance needs to improve. Other examples include the absence of an equality plan, an anti-harassment plan, psychosocial risk management, daily working time records, a pay register and the pay audit required under the equality plan.
* Lack of a culture of work–life balance in many workplaces: organisations with a well-established work–life balance plan find it easier to draw up the protocol, as they already have a foundation on which to build it, thereby furthering a culture of balance between personal, family and working life.
* Failure to meet pre-existing duties: not complying with earlier obligations, such as keeping a daily record of working hours, makes it harder to introduce a digital disconnection protocol.
Meeting these prior obligations is crucial to guaranteeing the right to digital disconnection.
Lack of clarity in the legal framework: Article 88 of the LOPDGDD (Organic Law 3/2018 on the Protection of Personal Data and the Guarantee of Digital Rights) is excessively generic, which may help to explain why employers fail to understand and comply with it.
* Few complaints and court rulings on the right to digital disconnection: although complaints and court decisions concerning this right are scarce, some judgments, such as that of the National High Court (‘Audiencia Nacional’) of March 2022, underline the importance of respecting the limits on the right to digital disconnection laid down in collective bargaining or agreed between the company and the workers’ representatives.
* A further problem: training and awareness-raising. Five years on, many collective agreements now expressly regulate the right to disconnect, albeit unevenly: some merely refer to the LOPDGDD, while others go further and even include good practices to make it easier to exercise the right to digital disconnection. Even so, the training and awareness-raising activities expressly required by Article 88 of the LOPDGDD remain an ‘open question’ and something of a ‘black hole’.
There is no guidance on how many training activities should be carried out, of what kind or how often, nor is collective bargaining dealing with this properly (subject to whatever may be agreed with the workers’ representatives).
Implementing regulations are essential here, since training is crucial: without training and awareness-raising, the digital disconnection protocol (beyond formal compliance and its clauses) may end up as little more than a ‘dead letter’.
Finally, it is essential that companies, and people managers in particular, become aware of the importance of complying with the law and commit to going further, using the protocol requirement as an opportunity to establish a culture of healthy ICT use within organisations.
In short, Spanish companies still have a long way to go, and plenty of homework to do, when it comes to the right to digital disconnection.
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