Spain: 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 Spain.

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 Spain. This right was established by the Organic Law 3/2018, of 5 December, on the Protection of Personal Data and Guarantee of Digital Rights.

Specifically, article 88 of this law guarantees employees the right to disconnect from digital devices outside of their working hours. This legislation came into force on 7 December 2018.

The right to disconnect aims to ensure that employees can fully enjoy their rest periods, leave, and holidays, and to promote a balance between personal and professional life. It is part of a broader effort to address the challenges posed by the digitalization of work and the increasing use of digital tools and communication technologies in the workplace.

2. Is the right governed by legislation, a code of practice or both?

The right to disconnect in Spain is primarily governed by legislation, specifically the Organic Law 3/2018 as article 88 explicitly addresses the right to digital disconnection. Additionally, the Spanish Workers' Statute and collective bargaining agreements include provisions that further regulate the implementation of this right.

While the primary framework is legislative, companies must develop internal policies and codes of practice to ensure compliance and to address the specific needs of their workforce. These internal policies should be developed in consultation with employee representatives to ensure they are effective and tailored to the company's operational context.

3. Do all employees have a right to disconnect?

Yes, all employees in Spain have the right to disconnect; article 88 of the Organic Law 3/2018 applies to all employees regardless of their position or sector.

The law mandates that employees should not be obliged to engage in work-related communications or tasks outside of their regular working hours. This right is designed to protect employees' personal time and to promote a healthy work-life balance.

However, the specific implementation of this right may vary depending on the terms of collective bargaining agreements and internal company policies, which can provide additional details on how the right to disconnect is to be exercised within a particular organization.

4. Are all employers obliged to provide the right to disconnect?

Yes, as set forth in article 88 of Law 3/2018, all employers in Spain are obliged to provide the right to disconnect to their employees.

Employers are required to implement measures that ensure employees can exercise their right to disconnect from digital devices and work-related communications outside of their working hours. This includes developing internal policies, in consultation with employee representatives, that outline the modalities of exercising this right.

Employers must also ensure that these policies are effectively communicated to all employees and that they are adhered to in practice. Failure to comply with these obligations can result in legal consequences for the employer.

5. What are the obligations on the employer?

Employers in Spain have several obligations regarding the right to disconnect:

• Firstly, they must develop and implement an internal policy that clearly outlines the modalities of exercising the right to disconnect. This policy should be created in consultation with employee representatives to ensure it meets the needs of the workforce.
• Employers must also ensure that employees are aware of this policy and understand their rights and obligations under it.
• Additionally, employers are required to respect employees' right to disconnect by not expecting or requiring them to engage in work-related communications or tasks outside of their regular working hours.
• Employers must also take measures to prevent any negative repercussions for employees who exercise their right to disconnect.

6. What happens if an employer fails to comply with its obligations?

If an employer in Spain fails to comply with its obligations regarding the right to disconnect, there can be several consequences:

• Employees may file complaints with the labour authorities or take legal action against the employer for violating their rights.
• The employer may be subject to fines and penalties imposed by the labour inspectorate for non-compliance with labour laws, with fines ranging from EUR 751 to EUR7,500.
• Additionally, failure to respect the right to disconnect can lead to reputational damage and decreased employee morale and productivity.
• In severe cases, employees may claim compensation for damages resulting from the employer's failure to comply with the right to disconnect, particularly if it leads to health issues or infringes on their personal and family life.

7. Have there been any reported cases on the right to disconnect?

As of now, there have been limited reported cases specifically addressing the right to disconnect in Spain. However, the concept is relatively new, having been established in 2018. Most cases related to this right are likely to be resolved through internal company policies and collective bargaining agreements rather than through litigation. Nonetheless, as awareness of the right to disconnect grows and as more employees seek to enforce this right, it is expected that more cases will emerge. These cases will help to clarify the practical application of the right to disconnect and set precedents for how it should be implemented and enforced in various workplace contexts.

8. What are the benefits and challenges of the right to disconnect in practice?

The right to disconnect offers several benefits, including improved work-life balance, reduced stress, and better mental health for employees. It helps to ensure that employees can fully enjoy their rest periods and personal time without the intrusion of work-related communications. This can lead to increased job satisfaction, higher productivity, and lower turnover rates.

However, there are also challenges in implementing this right. Employers may struggle to balance the need for continuous business operations with respecting employees' right to disconnect. There may be difficulties in defining clear boundaries for work-related communications, especially in roles that require flexibility or on-call duties. Additionally, ensuring compliance and addressing potential conflicts between employees and management can be challenging.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

Since its introduction in 2018, the right to disconnect has had a notable impact on the workplace in Spain. It has raised awareness about the importance of work-life balance and the need to protect employees' personal time. Many companies have developed and implemented internal policies to comply with the legislation, leading to a cultural shift towards respecting employees' boundaries outside of working hours. However, the extent of the impact varies across different sectors and organizations. While some companies have fully embraced the right to disconnect, others may still be in the process of adapting their practices. Overall, the right to disconnect has contributed to a broader conversation about employee well-being and the future of work in a digital age.

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

There are ongoing discussions and potential changes on the horizon regarding the right to disconnect in Spain. As the digitalization of work continues to evolve, there is a growing recognition of the need to adapt and strengthen the existing framework to better protect employees' rights.

In fact, it is possible that the current regulation will be modified in order to establish that the right to disconnect includes not only the absence of any request to perform a work task outside of working hours but also the absence of communication from the company or the person to whom it delegates, as well as from third parties with a commercial relationship with the company, and with the worker through any device, tool, or digital means, as well as the right not to be reachable outside of working hours.

AUTHORS FROM CUATRECASAS
Juan Bonilla, Partner
Ana Campos, Knowledge Lawyer