This statement has been debated for quite some time now. We can imagine that this may sound appealing to most employees and that for some employers the mere thought of the right to disconnect sounds horrible. What is the underlying idea? And what are the chances that employees in the Netherlands will be entitled to the right to disconnect within the foreseeable future?
The right to disconnect outside working hours
The right to disconnect outside working hours implies that employees can enjoy their free time without being interrupted by their digital (work) devices. Initiators of these proposals believe that employees are entitled to be “offline” outside their work. In their opinion employees should not have to deal with any digital (work) activities during a certain period every day. This means no email, no telephone calls and no other (digital) activities whatsoever.
Employees can experience stress because they are always connected. Research shows that the biggest and fastest growing group that is experiencing this are younger people between the age of 25 and 35. Many employees have a company phone nowadays. Therefore, those employees are always connected to their work activities. Scientific estimations demonstrate that every day worldwide an average of 200 billion emails are sent and that 75% of those emails are answered within an hour.
British research shows that employees work an average of one hour and fifteen minutes outside their working hours. This can lead to employees that cannot disconnect from their working activities, are under constant pressure of stress and have less resting time. Furthermore, research of the University of Amsterdam shows that employees experience more and more pressure to swiftly respond . This is called ‘workplace telepressure’.
Corona
In addition, because of the corona lockdowns, employees are working more from home. Consequently, the line between working hours and free time has faded for most employees. Research shows that employees perform more and longer overtime work than before. For this reason, the debate on the right to disconnect greatly accelerated.
Not a new idea
The right to disconnect is not a new idea. Already in 2017 Lodewijk Asscher mooted the idea to introduce the right to disconnect. The then Minister of Social Affairs and Employment at that time stated: “Nobody becomes sick from working hard, however everybody will be sick if working too hard”.
Legislative proposal European Union
In February, the European Parliament has advocated for a European (Labour) Law establishing employees to be entitled to the right to disconnect from (digital) work activities without being affected negatively. This legislative proposal has been adopted with 472 votes for and 209 votes against. The European Parliament considers the right to be disconnect as a fundamental right that helps employees to deny (digital) work activities outside working hours.
Legislative proposal in the Netherlands
Dutch labour law does not include the right to disconnect. However, the legislative proposal “The right to disconnect” (in Dutch: ‘Wet op het recht op onbereikbaarheid’) was submitted in July 2020. The main goal of this legislative proposal is that the employer and the employee will debate about the right to be disconnect outside working hours, as part of the working conditions policy. Mr. Van Dijk, initiator of the legislative proposal, proposed to adjust Articles 3 and 5 of the Working Conditions Act (in Dutch: ‘Arbeidsomstandighedenwet’). Based on his proposal the working conditions should include that employees are entitled to the right to disconnect of work-related activities outside working hours. Furthermore, his proposal includes the employer’s obligation to record in the RI&E in which way the resting time is ensured. The goal of the proposed legislation is that employers take restrictions against the damaging impacts of employees that are always connected. The political debate concerning this proposed legislation still needs to start.
Legislation France
Within France, the right to disconnect, the so-called ‘droit a la deconexion’ is already enshrined in the law since 2017. Companies with more than 50 employees are obligated to make arrangements on the possibility to be disconnected. This legislation does not include a right to be disconnected for employees. Employees merely have the right to debate the manner how the right to be disconnected is implemented within the company through their employee representation.
Company’s internal policies
Without awaiting the legislation on the right to be disconnected, some companies in Germany, France Belgium and Luxemburg took measures themselves to give their employees the possibility to be disconnected outside working hours. Telecom provider Orange included the right to be disconnected within the collective labour agreement already in 2016. The three biggest car companies from Germany, BMW, Daimler, and Volkswagen have incorporated specific internal company policies including the right to be disconnected. It is said that Volkswagen was the first company worldwide to adapt an internal company policy stating that internal servers cannot forward emails to private email accounts between 6.15 pm an 7 am. Multiple companies have copied this policy. AXA Spain has included the right for employees to turn of their phone outside working hours. Supermarket chain Lidl Belgium has paused all incoming emails between 6 pm and 7 am. Emails that are received during the weekend, are forwarded to the employees on Monday morning.
Arrangements on the right to (dis)connect in collective labour agreements
Employers do not have to await the political debate concerning the right to be disconnected. Regardless of legislation, this debate can be conducted by employers and employees and by their representatives. Multiple collective labour agreements have already included the right to disconnect. The collective labour agreement for the disability sector has included that employers are not allowed to disturb employees on their scheduled days off. In this CLA the following is adopted: “The employee is entitled to be inaccessible on their scheduled days off”. Other collective labour agreements, such as – but not limited to – CLA childcare and the CLA VVT have included similar provisions.
Conclusion
A Dutch expression runs: “however hot the soup is served, it has cooled down by the time you eat it”. This is the same for the right to be disconnected. For the time being employees do not have the (explicit) right to disconnected. Both the Dutch legislative proposal and the France legislation empowers the employees “merely” to get a conversation going with the employer about the possibility to be disconnect outside working hours. This legislation provides the employees, the trade unions and work councils with a tool to start the discussion with the employer and the employer’s associations in the hope that it creates awareness under employers what the impact is of always being connected. For now, we should await how the proposal is received by the European Commission and how the proposal develops. To be continued…
Questions? Please contact Alain Heunen
