Germany: The Right to Disconnect Q&A
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 Germany.
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?
To date, there is still no actual right to disconnect in Germany. It is up to the employer to implement such a right either through their employment contracts, company agreements or individual agreements with employees, which has so far been done on a voluntary basis.
On the other hand, however, the German Working Time Act ensures that employees are not obliged to be available at all times. This is achieved by establishing a maximum working time limit, entitlement to breaks and a certain number of hours of rest, and the general prohibition of work on Sundays and public holidays, among other provisions. Compliance with the German Working Time Act is mandatory and violations can lead to significant fines and even criminal liability for management.
2. Is the right governed by legislation, a code of practice or both?
The right to disconnect, to the extent it results from the regulations on rest periods as outlined in the German Working Time Act, is a result of this law combined with the case law of the German Federal Labour Court. In 2023, the court strengthened the position of employers in this regard when it ruled that employees may be under an obligation to read text messages even on a Sunday if the actual start of the shift time on the next day can only be determined by the employer at relatively short notice and the employee has to expect such notification. Reading a text message under such circumstances is not considered working time and, therefore, does not interrupt the mandatory rest time as it does not severely impact the employee's time off from work on a Sunday.
3. Do all employees have a right to disconnect?
Apart from the aforementioned rights under the German Working Time Act, there is no absolute right to disconnect for employees. Furthermore, the actual extent of availability outside of work depends on the particular circumstances of each case. In some cases, for example, it may be necessary to issue specific instructions regarding working hours in the employee's free time.
4. Are all employers obliged to provide the right to disconnect?
As there is no specific law in this regard, employers are open to implementing policies on this issue. Some companies have already implemented such a right in their employment contracts or company agreements and, for instance, suspended delivery of emails to their employees' mobile phones during evening / night hours.
5. What are the obligations on the employer?
As indicated before, employers are required to comply with the German Working Time Act and, for instance, ensure minimum break and rest times and comply with daily working time limits. Apart from that, in business operations with works councils employers may have to go through consultation before implementing policies on the right to disconnect (depending on the specific rules to be implemented).
6. What happens if an employer fails to comply with its obligations?
In business operations for which a works council is established (which the workforce can do in business operations with as little as five employees), the employer is subject to monitoring by the works council to the extent compliance with laws is at stake that are intended to protect the employees. Additionally, a competent supervisory authority oversees compliance with the German Working Time Act by the employer. Violations of these regulations can result in fines being imposed on the employer.
7. Have there been any reported cases on the right to disconnect?
Relatively recently, in August 2023, a decision by the German Federal Labour Court reignited the debate on the issue of the right to disconnect and, in particular, strengthened the call for clear regulations by the legislator. However, an unrestricted right to disconnect was clearly rejected. Referring to the aforementioned rights under the German Working Time Act, the court ruled that an employee should have taken note of and read an instruction sent by the employer by text message after unsuccessful attempts to call. Yet it should not go unmentioned that this was only possible because simply reading and acknowledging an employer's instruction via text message is not an act that falls under the concept of working time in accordance with Article 2(1) of Directive 2003/88/EC and therefore does not violate the regulations regarding rest periods.
8. What are the benefits and challenges of the right to disconnect in practice?
In the current absence of a codified right to disconnect, there is little practical experience among employers as to what the benefits and challenges of introducing such a right would be.
The right to disconnect has the potential to offer a number of benefits for employees, particularly in terms of work-life balance and mental health. The introduction of clear legal regulations and the resulting limits on employee availability outside of working hours could enable employees to switch off more effectively after work, reduce stress and make better use of their personal time. This could potentially lead to increased productivity in the workplace.
For employers, the potential increase in productivity resulting from the right to unavailability could, of course, be an advantage. However, it should be acknowledged that absolute unavailability after working hours can pose significant hurdles to operational efficiency. This is particularly the case in sectors and positions that demand constant availability, such as customer service, the need to respond to emergencies or, as previously mentioned, in the context of a simple specification of working hours in the employee's free time.
9. Has the right to disconnect had a significant impact on the workplace since it came into force?
Not applicable.
10. Are there any changes on the horizon relating to the right to disconnect?
As already mentioned, the 2023 decision of the German Federal Labour Court has reignited the discourse surrounding this subject and furthermore strengthened the desire for legislative regulation. Regardless, it should be taken into account that, depending on the individual case, it is highly likely that an absolute right to disconnect cannot be expected, particularly in cases in which, for instance, future working hours can only be specified in the employee's personal time for organizational reasons. However, this will need to be determined on the basis of existing case law, and exceptions will have to be found.
The German legislator has long considered the idea of establishing a right to disconnect, following the example of other countries, but no draft has yet been presented. In addition, a European directive has also been considered in recent years, which would force the German legislator to implement it into national law. Until then, it is up to the employers to voluntarily introduce a right to disconnect. Where they wish to do so, it is important to consider how best to introduce the right (e.g., via employment contract or policies) to strike a balance and achieve business objectives.
