The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.
There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.
With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Belgium.
This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.
1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?
Yes, there is a right to disconnect in Belgium.
For the private sector, certain employers (see answer to question 4) must ensure a right to disconnect since 1 April 2023.
A right to disconnect also exists in the public sector. However, it may slightly differ subject to the level of the governmental entity at stake within the Belgian governmental structure. This contribution therefore focuses on the private sector.
The right to disconnect concerns the right for employees to not have to be connected to professional digital tools (e.g., mobile phones, laptops), and to not have to deal with professional e-mails/calls outside normal working hours. The goal is (i) to ensure that employees' rest/leave periods are respected (to promote recuperation opportunities) and (ii) to enable employees to have a better work-life balance.
For the concerned employers it means that they (i) must ensure that their employees have the right to disconnect when they are no longer supposed to be working and that they (ii) must define the procedures for ensuring said disconnection through the completion of specific formalities (see further information under question 5).
2. Is the right governed by legislation, a code of practice or both?
The right is governed by legislation1. Nonetheless, based on the regime applicable since 1 April 2023, the right must in principle be implemented at company level by a collective labour agreement (“CLA”) in accordance with the law on CLAs or, alternatively, via the work regulations in accordance with the ordinary rules applicable in the event of amendments to the work regulations.
However, said implementation at company level is not mandatory if the right was already implemented by a CLA made binding by the King and concluded either at the level of the competent joint labour committee (“JLC”)2 (sectoral level) or at the level of the National Labour Council (national level). For this exception to apply, the sectoral/national CLA must contain the minimum requirements set out by the law in relation to the modalities of the right to disconnect for employees and the implementation of regulatory mechanisms for the use of digital tools.
For the moment, no CLA has been concluded at national level. At sectoral level, on the other hand, many binding CLAs have already been concluded by various JLCs.
3. Do all employees have a right to disconnect?
The right to disconnect applies to all employees to the extent they are employed by an employer subject to the obligation to provide a right to disconnect (see further information under question 4).
No category of employee is expressly excluded by law. However, some exceptions exist at sectoral level depending on the specific scope of application of the CLA concluded by the competent JLC.
4. Are all employers obliged to provide the right to disconnect?
The obligation to provide a right to disconnect is only applicable to employers who employ at least 20 employees.
The law does not specify how the threshold of 20 employees is to be calculated. It is therefore a matter of checking that 20 people have signed an employment contract with the employer at the same time, regardless of whether these contracts are for full-time or part-time work. This is confirmed by the information sheet provided on the website of the Belgian Labour Inspectorate (“Service Public Fédéral Emploi, Travail et Concertation sociale”/ “Federale Overheidsdienst Werkgeegenheid, Arbeid en Sociaal Overleg”) which provides that employees are counted per unit (i.e., they count as 1 employee) and not in full-time equivalents.
5. What are the obligations on the employer?
Employers employing at least 20 employees must in principle conclude a company level CLA setting out the modalities of the right to disconnect for employees and the implementation of regulatory mechanisms for the use of digital tools. In the absence of a company level CLA, said modalities/regulatory mechanisms must be included in the work regulations (except if an implementation of the regime has been made at sectoral or national level – see question 2).
Said modalities and regulatory mechanisms must at least provide for:
- Practical arrangements for the application of the employee's right not to be contactable outside working hours (e.g., closure of access to the company's computer server during certain time slots, activation of absence/redirection responses and the use of automatic signatures indicating the non-imperative nature of an immediate response, etc.).
- Instructions on how to use digital tools in such a way as to ensure that employees' rest periods, holidays and private/family life are guaranteed (e.g., refrain from answering work-related e-mails and calls on their mobile phone outside working hours, activate an out-of-office message when employees are unavailable, etc.).
- Training and awareness-raising initiatives for employees and management on the sensible use of digital tools and the risks associated with excessive connection.
6. What happens if an employer fails to comply with its obligations?
Strictly speaking, there is no direct sanction per se provided by the legislation regarding the right to disconnect.
This means that if an employer who is subject to the obligation to conclude a company level CLA setting out the modalities of the right to disconnect for employees and the implementation of regulatory mechanisms for the use of digital tools or to include said modalities/regulatory mechanisms in the work regulations does not comply with said obligations, it will not be sanctioned for it.
However, if the right to disconnect must be implemented via the work regulations, and the work regulations are not compliant with the minimum requirements set out by the law on the right to disconnect, then it could trigger sanctions on the ground that the work regulations are not compliant with the law.
7. Have there been any reported cases on the right to disconnect?
To the best of our knowledge, no case has been reported yet in relation to the right to disconnect in Belgium based on the regime applicable since 1 April 2023.
8. What are the benefits and challenges of the right to disconnect in practice?
In Belgium, given the way the right to disconnect is foreseen by law, the following benefits can be underlined:
- The system of implementation at company level enables the concerned employers to set the practical arrangements for guaranteeing the employee's right to disconnect in accordance with their own structure and organisation.
- The obligations to be complied with remain accessible and are not yet subject to sanctions. This means that companies have room to slowly implement effective disconnection systems.
- Among the minimum requirements to be included in the measures for the right to disconnect, the law includes “training and awareness-raising measures for employees and management staff on the sensible use of digital tools and the risks associated with excessive connection’, which could have very beneficial practical effects on the way employees use the digital working tools.
In the current economic context, and given the increasing pressure for globalisation, the implementation of the right to disconnect is not always aligned with the companies’ operations needs and the increased flexibility required from both the employers and the employees.
9. Has the right to disconnect had a significant impact on the workplace since it came into force?
There was no significant impact on the workplace per se. However, it has had an impact on the collective consultation on the right to disconnect.
10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?
To the best of our knowledge, at the moment, there are no changes on the horizon relating to the right to disconnect in Belgium.
This summary was produced in co-operation with a law firm in Belgium.
1 The law of 26 March 2018 on strengthening economic growth and social cohesion as amended by the law of 3 October 2022 containing various provisions relating to employment (known as the “Job Deal”).
2 A JLC is a social dialogue body established at sectoral level. Every company operating in Belgium belongs to a JLC (e.g., banking, metalworking, construction, etc.). The JLC draws up rules on working conditions applicable to all companies for which it is competent via its sectoral CLAs.
