Understanding Your Legal Obligations: The Right to Disconnect Explained

The last amendment to the Employment Relationship Act introduced, among other, a new right, the right to disconnect. It is the right of employees to switch off their mobile phones, work computers and not answer calls and emails outside working hours (daily, weekly rest, annual leave, sick leave, etc.) without being adversely affected. The employer must ensure that the employees are not at the employer's disposal during the exercise of the right to rest or during periods of authorized absence from work.

Primarily, these measures are determined by a branch collective agreement. In the absence of a binding collective agreement, the employer must specify in an internal act how it will guarantee this right, including the criteria and conditions for exceptions. It is important that those exceptions are justified on grounds of force majeure or other exceptional circumstances (i.e. circumstances that could not be foreseen).

In case the exception arises, the employer must provide compensation to the employee for being available to the employer (i.e. overtime work).

The Employment Relationship Act does not prescribe specific measures on how to comply with the right to disconnect. These measures can be soft or hard. Soft measures include policies to raise awareness of the dangers of constant digital connectivity, rules on when to send e-mails, call co-workers, regular reminders that messages do not require a response outside working hours. Hard measures include those of a technical nature e.g. introducing a system that prevents or deletes sent/received emails, locks remote access to documentation, blocks calls to the work phone outside regular work hours.

It is important to know that it is the employer who must ensure that employees' right to disconnect is not infringed upon. Also, in the event of a dispute, the burden of proof is reversed, meaning that in the event that the employee alleges a breach of the right to disconnect by the employer, it is the employer who will have to prove that there has been no infringement of the right to disconnect, while the employee only has to allege the occurrence of a infringement. It is therefore essential that measures are written down in a sufficiently concrete manner and that they are actually implemented in practice, so that the employer can prove compliance with the right to disconnect, for example with witnesses.

Adopt an internal act on the right to disconnect and protect your company and employees. Our legal experts have extensive experience in labor law and will be happy to assist you in preparing legally compliant internal act on the right to disconnect.