Antonio Tejeda Encinas President of the Euro-American Digital Law Committee
Whether teleworking situations exist or not, it is essential that a digital disconnection plan be developed.
Of course, in the case of employees who work remotely, the provisions established in article 18 of the Remote Work Law (Law 10/2021, of July 9) must be additionally considered:
“People who work remotely, especially teleworking, have the right to digital disconnection outside of their working hours, in accordance with article 88 of Organic Law 3/2018, of December 5. 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 restrictions on working hours according to the applicable legal or conventional regulations.”
Regarding the failure to comply with the obligation to prepare the protocol, this can be attributed to various factors:
* Lack of culture of labor compliance (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 record, and the remuneration audit within the framework of the equality plan.
* Lack of a culture of reconciliation between personal, family and work life in many work environments: Those instances with a well-established plan of conciliation measures find it easier to prepare the protocol, since they have a prior basis for its implementation, thus advancing the culture of conciliation.
* Failure to comply with previous duties: The lack of compliance with previous obligations, such as the daily recording of the day, makes the implementation of the digital disconnection protocol difficult.
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 may contribute to the lack of understanding and compliance on the part of labor entities.
* Low number of complaints and legal pronouncements on the right to digital disconnection: Although there are few complaints and rulings in the courts regarding this right, some rulings, such as that of the National Court of March 2022, highlight the importance of respecting the limits on the right to digital disconnection as established in collective bargaining or agreed between the company and worker representatives.
* Another problem added: training and awareness actions;
Five years later, and although we have many collective agreements expressly regulating the right to disconnection (although in a disparate way: some with a mere referral to the LOPDGDD and others do go further including even good practices to facilitate the exercise of the right to digital disconnection), the issue of training and awareness actions expressly required by art. 88 of the LOPDGDD continues to be a “unknown mystery” and a kind of “black hole.”
There is no guidance on how many training actions should be carried out or what type or frequency of these measures and neither is this being well regulated in collective bargaining (except for what can be agreed with the workers’ representatives).
At this point, a 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 “wet paper.”
Finally, it is essential that companies and, in particular, those responsible for people become aware of the importance of complying with the regulations and that they commit 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 tasks regarding the exercise of the right to digital disconnection in Spanish companies.
