The right to disconnect: EU lost in translation?

By Evlampia Tsolaki, Attorney at Law

(briefly added complementary thoughts)

The pandemic has had an immense impact upon the prevailing working patterns, by instigating a significant shift of the employment place from business-premises to home since while before   its outbreakonly one in ten people worked from home[1], nowadays it is estimated that approximately 40%of the workforce provides their services from home[2]. In this fashion, the so-called teleworking, otherwise remote-working or home-office in the German legal order, in the framework of which employees conduct their duties outside business-establishment and specifically primarily from home, has been transformed not only to a basic, but additionally to a desirable form of employment as it ensures employees’ protection from the coronavirus’ propagation. It is apparent that the aforementioned modification of the working-environment has challenged the already so far existing concept of the employment relationship as the legal obligations arisen by it, such as the subordination of the employee to the employer’s power to give instructions and to control their implementation or the responsibility of the latter to comply with the duty of care towards their personnel, have acquired a new content while n parallela novel one has been added, by emerging from the new working-conditions. So, in this context, for instance it is maintained that employer shall provide employees with the equipment required in order for them to be employed at home. At the same time, beyond obligations of such a kind, which of course represent a specification of the duty of care, there has been ʺinventedʺ another one that has been especially tailored in order to assist in the smooth operation of the employment relationship from home per se, the already well-known ʺright to disconnectʺ[3].

As suchis determined the right of the employee to ʺbe releasedʺ from the relentless, literallyorweillian, surveillancerealized by the digital devices being used by them in order to properly perform the services assigned. The rationale behind its conception lies in the sheer factum that, as repeatedly stressed,«teleworking blurs the distinction between private and professional life»[4]since employees by being steadily interconnected with their employers at the same time remain at the mercy of their constant and thus exaggerating orders and demands without having an effective line of defense against them. Indeed, the more and more growing usage of teleworking has cultivated a working mentality of employees’ full,otherwise ʺon-callʺ[5], availability 24h a day, which makes them overall accessible anytime and anywhere. As it could be easily understood, this single fact opens up the potential for the employer to misuse their omnipotence, that in any case is enjoyed by them towards their counter-contractual party, as de facto being by far the strongest party to the employment relationship, especially in a turbulent financial era, where the ghost of unemployment is permanently present forcing employees to give ground in exchanging of maintaining their positions. Consequently, it becomes evident that the right to disconnect is vested with significant importance for it constitutes the most efficient legal regulation towards suchdegenerative phenomena of the workmarket.

The above briefly referred to remarks are enough to witness why the European Parliament has considered indispensable to call upon the Commission in order for the latter to enshrine express such an innovative right in the European legislative arsenal as until now it has not been officially acknowledged. In addition to that, it has asked the establishment of minimum requirements for employees remotely conducting their dutiesalong with the clarification of their working conditions, hours and rest periods[6] as «the combination of long working hours and higher demands also leads to more cases of anxiety, depression, burnout and other mental and physical illnesses»[7]. It is to be emphasized that it is estimated[8] that people who work regularly from home are more than twice as likely to surpass the maximum of 48 working hours per week in comparison with those working on-site and almost 30% of the former are employed in their free time every day or several times a week towards less than 5% of the latter. Hence, European Parliament has moved on to request the particularisation of the right to disconnect into the following points[9]:

a)«employers should not require workers to be available outside their working time and co-workers should refrain from contacting their colleagues for work purposes»,

b) «EU countries should ensure that workers who invoke their right to disconnect are protected from victimization and other repercussions and that there are mechanisms in place to deal with complaints and breaches of the right to disconnect»

c) «Remote professional learning and training activities must be counted as work activity and must not take place during overtime or days off without adequate compensation».

Based on those characteristics, there is no doubt that the initiative undertaken by the European Parliament is of utmost importance. Nevertheless, unfortunately,this brilliant venture has been accompanied with a severe defect, namely it has been added a last moment amendment, pursuant to which the Commission is asked to delay any legislation regarding the right to disconnect for a period of three years. Of course, it becomes obvious that such a procrastination amounts to the factual cancellation of the right to disconnect foron the one hand it covers all the critical time span, where the pandemic is likely to remain on the spotlight imposing more and more remote-working, while on the other one these years are undeniably pretty enough for theconsolidation of the remote-working as an employment pattern, equally adopted as the on-site performance of duties.In other words, the delay proposed is a Trojan horse to the work market, which foreshadows its de-regulation, considering that it is combined with the ongoing economic recession.

Thus, from that angle, the recent displacement of the public discussion center of gravity from the actual regulation of the right to disconnect to the necessity for it being furthermore recognized as a fundamental right is at least misleading since it noisily silents the de facto fatal tardiness to its introduction while at the same time gives the impression that as a fundamental right it will enjoy higher protection, which is completely false. In particular, it is very well-known that the fundamental rights enshrined in ECHR, inter alia, in order to be enabled to be horizontally invoked in the legal relationships between private actors, as the pair of the employer and the employee is, shall bear specific features. Namely their provisions are required to be given a «specific expression»[10], meaning to be conceptuallyprecise, clear and unconditional, characteristics for the existence of which eventually only the ECJ adjudicates upon.In practical terms, this means that the insertion of the right to disconnect to the ECHR per se will not boost its protection as eventually this is utterly contingent on the ECJ’s interpretation. Besides, considering that between the EU and the domestic law anyway precedes the former pursuant to the general principal of its supremacy, in the given case, at last, it is of little practical importance the level of its acknowledgement in the primary or the secondary EU law as irrespective of that the EU legal instrument will prevail towards the national legal orders.However, what it does matter, apart from its content itself, is the adoption of the right to disconnect to be introduced in such a way so as to become applicable in the horizontal relationship between the employer and the employee. This means that in case of its insertion to the ECHR, it shall be phrased in a provision with formalistically normative quality, which always presupposes to be precise, clear and unconditional, and in case of its introduction to a directive, it shall be properly  transposed in the domestic legal order within the prescribed time period[11]. Therefore, the bare insertion of the right to disconnect to the ECHR not only does not ensure its de facto safeguarding, but additionally does not seem to be even purposeful, at least as a legislative priority, so that the relevant debate,without the most crucial details having being regulated, is «a rosy fairy-tale» that does not have the potential to serve the employees’ hot interests at this crossroad of their struggle for claiming decent working conditions. Unfortunately, the same applies as regards its adoption in a directive, which is the most common means of introducing EU labour law, since this legal instrument, in case of not being transposed by a member state, never develops horizontal application in the legal relationship between private actors while in any case the time available for the transposition is rather long. Against that background and given that in general there have been disobedient member-states as regards the obligations undertaken through the legal device of directives, it is crucial the EU,apart from providing for a very short time span for the transposition of the respective directive, in parallel to open the way for the European social partners to reach an agreement[12], which in turn the national ones will strongly encouraged to transform into the relevant (binding) collective labour agreements. Besides, this is the only viable way to mitigate any delay since without the direct introduction of the right to disconnect, it could be hardly feasible the observance of the recent ECJ jurisprudence issued in the «Deutsche Bank» case[13]concerning the requirement for the Member States to establish a system allowing the duration of time worked each day by each worker to be measured so as in the absence of the entitlement currently at stake the whole venture more probably will result in becoming a «mission impossible»…So, instead of arguing as to whetherthe right to disconnect shall be set out in the ECHR, we have other fish to fry regarding how we will do it actually, meaningwe should cumulatively ascertain which legaldevice, content, phrasing and time period are the most suitable to that end. Otherwise we sugarcoat the fact that the right to disconnect would be reduced to nothing more than a wishful thinking since now it is the time to take action, considering that the tidal wave of remote-working due to the pandemic is overpowering.

Read more articles by Evlampia Tsolaki here

*Evlampia Tsolaki (linkedin Evlampia Tsolaki 1st) :  

• -Attorney at law qualified at the Thessaloniki Bar Association
• -Ph.D. candidate at the Faculty of Law of the Aristotle University of Thessaloniki
• -LL.M. in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law, School of Economics, Business Administration & Legal Studies of International Hellenic University (IHU, Thessaloniki)
• -LL.M. in Civil, Civil Procedural and Labour Law at the Faculty of Law of the Aristotle University of Thessaloniki 

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[1]See, https://www.etuc.org/en/pressrelease/lockdown-shows-urgent-need-workers-have-right-disconnect (accessed 05.02.2021 at 17.30 p.m.).

[2]See https://www.europarl.europa.eu/news/en/headlines/society/20210121STO96103/parliament-w ants - to-ensure-the-right-to-disconnect-from-work (accessed 05.02.2021 at 17.40 p.m.).

[3]H.Collins, Η δικαιοσύνη στην εργασία (transl. Justice at Work),ΕΕργΔ 2019, 1056 (transl. EErgD 2019, 1056).

[4] See f.2.

[5] ibid.

[6] See, https://www.europarl.europa.eu/news/en/press-room/20210114IPR95618/right-to-disconnect-should-be-an-eu-wide-fundamental-right-meps-say (accessed 05.02.2021 at 18.50p.m.).

[7]ibid.

[8] ibid.

[9]See f.2.

[10]See § 45 of the ECJ Judgment of 15.01.2014, C-176/12 (Asscociation de MédiationSociale).

[11] We remind that directives do not have direct effect in domestic legal orders, as happens with Regulations, since member states are obligated to comply with them by issuing a legislative act of transposition. If this is not the case or the national legal instrument issued does not abide by the respective directive, then it can be directly applicable only in the legal relationship between state and citizens on the condition that the provision concerned is enough precise, clear and unconditional.

[12] Noteworthy,such agreements are not binding.

[13]Judgment of 14.05.2019 (Grand Chamber),C-55/18 (Deutsche Bank).