Will The Right to Disconnect become the New Reality?
By: GVZH Advocates
The right to disconnect refers to a worker’s right to be able to disengage from work and refrain from participating in work-related communications, such as emails and WhatsApp messages, during non-working hours.
The increasing prevalence of the importance of the right to disconnect has resulted from the increase in work-related communications which are being experienced by various workers across the board during the evening and on weekends. The daily use of smart phones, most of which are in fact given by the employer to the employee, have made this practice the norm. So much so, that at some point, there was also the understanding that an employee who replied to emails and messages over the weekend or out of working hours, was considered a star employee. Studies today show that a constant work schedule is in fact linked to inefficiency and bad time management. There was also an expectation set by some employers that being available ‘at all times’ is a must. Today, being available at any time for online and mobile communications could be considered as potentially hazardous to the employee’s health.
The Coronavirus pandemic has not only upended social life across Europe, but has also dramatically changed the way people work. With ever more people working from home and needing to be constantly reachable, the boundaries between work and private life have become increasingly hazy. Lawmakers in favour of the right to disconnect say that the need for employees to be available via smartphone or e-mail around the clock is detrimental to one’s mental health and well-being, and that workers should be allowed to be offline without suffering employer retribution as a result.
Very recently, in January 2021, the European Parliament voted in favour of the report on the ‘Right to Disconnect’ headed by Maltese MEP Alex Agius Saliba. This is being considered as a “historic vote” in favour of workers’ rights. “After months of teleworking, many workers are now suffering from negative side effects such as isolation, fatigue, depression, burnout, muscular or eye illnesses,” said Saliba, adding that “the pressure to always be reachable, always available, is mounting, resulting in unpaid overtime and burnout.”
Although the drive behind the right to disconnect is predominantly a European one, in November 2020, the Government of Malta stated that a legislative framework on remote working is to be expected in the near future. In was also stated that there are ongoing discussions on the first draft of a legislative framework that regulates this area, thus potentially making the right to disconnect a reality in the coming months.
There is no legal right enshrined in EU law with respect to the right to disconnect. However the legal basis of this notion may be deemed to be the Working Time Directive (2003/88/EC). This Directive sets out the minimum health and safety requirements for the organisation of working time, in respect of the periods of daily rest, breaks, weekly rest, maximum weekly working time, annual leave and aspects of night work, shift work and patterns of work.
In Malta, the Working Time Directive has been transposed into our law as the Organisation of Working Time Regulations, Subsidiary Legislation (‘SL’) 452.87. The salient points of this regulation are summarised as follows:
- Hours of Work: maximum average weekly working time of 48 hours over a 7-day period, unless otherwise agreed between the employee and the employer. A standard working week is of 40 hours, whilst an additional 8 hours represent overtime. The 48-hour maximum working hours may be disapplied in certain circumstances.
- Night Work: a night worker’s normal hours of work shall not exceed an average of 8 hours in any 24-hour period. “Night work” is defined as work carried out between 10 p.m. of any one day and 6 a.m. of the next day.
- Minimum Daily rest: 11 consecutive hours per 24-hour period during which the worker performs work for his/her employer.
- Rest breaks: where a working day is longer than six hours, the employee is entitled to a rest break of at least 15 minutes (uninterrupted).
- Minimum Weekly Rest: 24 hours (uninterrupted) in each 7-day period during which the worker works for his/her employer. This weekly day of rest is also protected by Article 13 (2) of the Constitution of Malta.
THE RIGHT TO DISCONNECT IN PRACTICE
The case of Ville de Nivelles vs. Rudy Matzak was based on the Working Time Directive, as quoted above. This case concerned the remuneration of services performed within the fire service of Ville de Nivelles in France. The Nivelles fire service brings together professional firefighters, as well as volunteer firefighters who are on stand-by. Mr. Matzak entered the fire-fighting team on the 1st of August 1980 and acquired the status of a volunteer firefighter in 1981. On the 16th December 2009, he brought proceedings requesting the town of Nivelles to pay him a sum of money, by way of damages and interest, for failure to pay remuneration particularly for stand-by services. On the 22nd March 2012, the Tribunal of Nivelles accepted the claim to a large extent, but the town of Nivelles appealed such a decision. In 2015, the referring court partially upheld the appeal. It was decided that under the terms of the contract, Mr. Matzak was required to live no more than 8 minutes travel from the fire station in normal traffic circumstances. Furthermore, Mr. Matzak pursued real and genuine activities under the direction of another person, whereby he received remuneration. Therefore, in accordance with Article 2 of Directive 2003/88, stand-by time spent at home must be regarded as working time.
In the case of Federación de Servicios de Comisiones Obreras (CCOO) vs. Deutsche Bank SAE a Spanish workers’ Union brought a group action before the National High Court of Spain against Deutsche Bank, seeking a judgement declaring the bank to be under an obligation to set up a system for recording the time worked each day by its members of staff, in order to make it possible to verify compliance with the stipulated working times and the obligation to provide union representatives with information on overtime worked each month. This was based on the Spanish Workers’ Statute. First of all, the CJEU noted that the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods, not only constitutes an important rule of EU social law, but is also expressly enshrined in the EU Charter of Fundamental Rights and the Treaty of the European Union.
The Court noted that where there is no system enabling working time to be measured, a worker may, under Spanish procedural rules, rely on other sources of evidence, such as, inter alia, witness statements and the production of emails or the consultation of mobile phones or computers, in order to provide indications of a breach of such rights, thus bringing about a reversal of the burden of proof.
The decision of the Court was that according to the interpretation given to Directive 2003/88/EC in national case-law, the Directive does not require employers to set up a system enabling them to measure the duration of time worked each day by each worker.
On a concluding note, it is interesting to note that the first signs of the right to disconnect emerged in a decision issued by the Labour Chamber of the ‘Cour de Cassation’ (French Supreme Court) on the 2nd October 2001 where it was stated that
“the employee is under no obligation either to accept working at home or to bring there his files and working tools”.
This decision was subsequently confirmed by a decision handed down in February 2014 by the Cour de Cassation that confirmed that “the fact that [the employee] was not reachable on his cell phone outside working hours cannot be considered as a misconduct”.
It will definitely be interesting to see how the right to disconnect may become the new reality in 2021.
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 Organisation of Working Time Regulations, Chapter 452.87 of the 5th April, 2004;
 C518/15 – Ville de Nivelles vs. Rudy Matzak (21/02/2018);
 CJEU Case C-55/18 (14th May 2019);
 Labor Chamber of the Cour de Cassation, October 2, 2001 n°99-42.727;
 Labor Chamber of the Cour de Cassation, February 17, 2004 n°01-45.889;