MITLA.ORG.MT

MITLA POSITION PAPER – RIGHT TO DISCONNECT

INTRODUCTION

Today’s working realities and increased MITLA believes that a wider discussion adoption of new information and is required on the introduction of further communications technologies have introduced protections to workers against the growing new challenges into our working environments. realities of digital advances and in favour of The boundaries between work and private life greater flexibility in working arrangements, to have been blurred. Since workers are constantly benefit both the employer and the employee. connected through digital tools, employers’ This would have to be weighed against expectations have changed. the nature of the work, the professional A local discussion was recently sparked on competence of an individual, the skill of the the employees’ right to disconnect. This is a employee, the employee’s preferences, and proposed right ensuring the ability of people to the philosophy adopted in their work-place detach from work and choose to not engage in environment. In this position paper, MITLA work-related electronic communications, such questions whether the introduction of the as e-mails, calls, or messages, beyond work right to disconnect, as proposed so far before hours and during their designated rest periods, the European Parliament, is necessary once including vacations. legislative solutions and employment practices are already in place to guarantee employees their freedoms.

LITERATURE AND STAKEHOLDERS’ POSITION SO FAR

The right to disconnect is not unknown in Several European countries have introduced some parts of Europe. We all benefit from some form of a ‘right to disconnect,’ pre-existing fundamental human rights which albeit through different means. In some cases, cover elements of the right to disconnect. The this was introduced as a provision European Convention of Human Rights widely in employment law which caters for the guarantees our right to respect for private and maximum hours of work to which an employee family life. Another notable right is the right can be subjected to, whilst in other instances, to rest and leisure found in Article 24 of the self-regulation has taken over through company Universal Declaration of Human Rights. The policies and contract negotiations guaranteeing Council of Europe’s Revised European Social employee’s privacy and freedoms. Charter provides for a right to just working Given the guarantees provided by French conditions, including reasonable working hours laws to employees, it is not surprising that the and rest periods (Article 2), a right to safe and concept of a ‘right to disconnect’ first emerged healthy working conditions (Article 3), a right in France in 2001 following a decision of the to collective bargaining (Article 6), and a right French Supreme Court. The Court generally to protect workers with family responsibilities held that an employee could not be placed (Article 7). under any obligation to accept work at home or MITLA.ORG.MT

to carry with them work tools outside their place thus blurring the boundaries between work and of work outside work hours. private life. High level principles are adopted France proceeded to enshrine this right in within this Proposed Directive so that Member what is today known as the El Khomri law with States are to ensure that employers take the a chapter dedicated specifically to “Adapting necessary measures to provides workers with Labour Law to the Digital Age” (Adaptation du the means to exercise their right to disconnect. droit du travail à l’ère du numérique). The law, Amongst the measures proposed, employers which entered into force in 2017, provides that: should set up an objective, reliable, and “(7) The procedures for the full exercise by the accessible system that measures the duration employee of his right to disconnect and the of time worked each day by each employee, establishment by the company of mechanisms in accordance with workers’ right to privacy for regulating the use of digital tools, with and to the protection of their personal data. a view to ensuring respect for rest periods Workers should have the possibility to request and leave as well as personal and family life. and obtain the record of their working times. Failing agreement, the employer shall draw A minimum set of working conditions was up a charter, after consultation with the works proposed consisting of: council or, failing that, with the staff delegates. (a) practical arrangements for switching off This charter defines these procedures for digital tools for work purposes, including any the exercise of the right to disconnect and work-related monitoring tools; furthermore provides for the implementation, for (b) a system for measuring working time; employees and management and management (c) health and safety assessments, including personnel, of training and awareness-raising psychosocial risk assessments, with regard to activities on the reasonable use of digital tools.”1 the right to disconnect; the criteria for any derogation by employers Other countries, such as Germany and Italy, (d) from their requirement to implement a worker’s have also introduced some form of a right to right to disconnect; disconnect either through good practices or as in the case of a derogation under point , part of employment guarantees (as opposed to (e) (d) the criteria for determining how compensation a stand-alone right per se). for work performed outside working time is to More recently, in January 2021 the European be calculated; and Parliament, through a strong favourable vote, (f) awareness-raising measures, including in- adopted a resolution with recommendations to work training, to be taken by employers with the EU Commission on the right to disconnect. regard to the working conditions referred to in Maltese MEP Alex Agius Saliba pushed the this paragraph. Penalties have been suggested agenda for this proposal which sparked a wider as enforcement measures in the case of discussion on the potential further recognition infringements. of such right to disconnect mechanisms. MITLA notes that following the announcement The proposal is for a directive on the right of the proposed directive, various local to disconnect where it is recognised that stakeholders voiced their concerns in local digitisation and digital tools have presented media. The Malta Employers’ Association, the the paradox of increased productivity but Malta Chamber of Commerce, and the Malta also gave rise to a number of ethical, legal, Business Bureau insisted that government and employment-related challenges, such as should not introduce national legislation on the intensifying work and extending working hours, right to disconnect. 1 French Labour Code, Chapter II, Article 55. MITLA.ORG.MT

The Malta Chamber of Commerce commented relevant to their workplace (as opposed to that existing labour rules are adequate, and rigid legislation). Finally, the Malta Employers’ no further legislation is required. The Malta Association deemed the legislative initiative Business Bureau indicated that a space as premature and stated that it would be for dialogue ought to be created where unreasonable to rush things locally in respect of employers and workers, together with their this right. representatives, would find flexible solutions

MITLA’S POSITION

MITLA has been following closely the proposals normal business hours, and to what constitutes submitted before the European Parliament, the sufficient reason for a business to contact its proposed directive, as well as the opinions and employees, particularly those classified as articles submitted in the local media in relation professionals, outside working hours, during to the right to disconnect. work-related emergencies or disruption of Following its studies of the available information, services. In other words, an employer might the position of MITLA is that implementation have a legitimate expectation, depending of a right to disconnect: (i) should be based on on the nature of the work and under specific balancing the rights and interests of all those circumstances, to be justified in reaching participating in the digital economy, and (ii) its out and communicating with its employees introduction should be assessed in the light outside working hours. MITLA believes that a of existing legislative guarantees that already balance between the rights of the employee to safeguard the right of employees to enjoy their disconnect and the reasonable expectations private life and disconnect. of the employer not to disrupt business can only be achieved if there is sensible dialogue MITLA embraces the principles surrounding and negotiations between the stakeholders in the right to disconnect as an important step to introducing this right. Working arrangements increase the adoption of information technology and accommodating a right for employees and to push the digital economy, whilst at the to be able to disconnect should benefit both same time protecting workers’ rights. However, employer and employee, as enabled by the whether the introduction of a legal right as nature of the work, the skills and professional provided in the proposed directive is merited and competences of the employee, and the how this right should be introduced would need technological means available. to be assessed against a number of factors. Furthermore, MITLA questions whether a A reasonable balance should be reached fundamental right to disconnect as a ‘one- between the interests of employers and size-fits-all’ intervention, through a proposed employees participating in the digital directive, is required when it appears that there economy. It is understandable that a right to are already legislative safeguards and industry disconnect offers a better work–life balance practices in place to cater for employees’ privacy for employees. Nevertheless, before the and disconnection beyond working hours. introduction of any such right consideration should be given to different business models, This right in fact shares similarities with several for instance businesses that operate outside pre-existing fundamental human rights. MITLA.ORG.MT

Where elements of the right to disconnect were Another instance how the benefits of the rights introduced in other European countries, such to disconnect can be guaranteed is by having elements tend to have been either adopted as employees and trade unions negotiating part of employment law or left up to the industry terms so that, depending on the employees’ to self-regulate. It would appear, therefore, desires, the nature of the work involved, and that in such countries, the right to disconnect the individuals represented, the right becomes was not treated as a one-size-fits all EU-wide a human resource management best practice. solution but rather as a principle that can Labour laws are, in fact, already rife with be adapted to suit the needs of each entity various rights granted to workers through or workplace in order to accommodate the various directives and regulations including realities faced by each business. To name a few those relating to working time, collective specific examples, the El Khomri Law introduced redundancies, and part-time work conditions. in France does not attempt to define a ‘right to Workers are guaranteed a right to working be disconnected’ but rather allows companies conditions which respect the individual’s health, to choose the most practical ways to implement safety, and dignity, as well as the right to a the right taking into consideration the nature of maximum working time, to daily and weekly the business (for example, whether it operates rest periods, and to annual periods of paid and across time zones, or whether the employees vacation leave. European legislation such as the work nights or weekends). This law encourages Working Time Directive, which is transposed self-regulation and the provision of internal into national law, already set out rules on company policies to employees that serve working and rest time. to outline best practices to ensure that the Without diminishing the importance of such employees are afforded a right to privacy and debate, MITLA is therefore proposing that the to disconnect. The obligation applied at law is guarantees and benefits deriving from a ‘right therefore more akin to a ‘negotiation process’ to disconnect’ are applied without necessarily with each individual employee, rather than a introducing an EU-wide rigid concept within a mandatory requirement. directive. Balance between work and private Similarly in Germany, whilst no ‘right to life is essential to workers; that knowing how disconnect’ exists per se, industry has a history to disconnect is a skill which needs to be of implementing best practices through the supported by employers. MITLA observes norm of adopting policies which cater for a that greater benefits may be derived if the limit on the amount of digital connection with stakeholders discuss and design together how employees after work hours. Companies such these benefits are to be implemented, keeping as Volkswagen, Henkel, Daimler, Bayer, and in mind a fair balance between employee needs Allianz appear to have all embraced this form and industry requirements. of self-regulation. As another example, Italy To this end, MITLA considers that the position introduced elements of this right in sector- currently taken by the EU Commission, specific employment legislation which identified especially through the pronunciations and that the contract of employment would also statements made by EU Commissioner for need to identify a worker’s rest period, as Jobs and Social Rights Nicolas Schmit during well as technical and organisational measures the same debate in parliament leading to necessary to ensure that the worker can the vote, should serve as the example for disconnect from work technological equipment. further explorations on the right to disconnect where social dialogue, the participation of MITLA.ORG.MT

social partners as key stakeholders, as well as a right to disconnect, and before any legislative discouraging one-size-fits-all EU-wide solution or industry norms were introduced, studies could be the ideal route. backed by scientific evidence and surveys Finally, MITLA observes that in the majority of were conducted on the mental health and the jurisdictions and institutions which have preferences of employees in the work place, assessed the introduction of some form of and the viability of legislation to target it.

CONCLUSION

In light of the complex nature of the right to Following the event, MITLA shall gather, assess, disconnect, MITLA proposes that rushing and publish the stakeholders’ position on this directly towards legislative solutions, at EU or right, and revise this position paper if and where national level, without exploring non-legislative needed on the basis of its studies. Finally, paths should be avoided. MITLA shall collaborate with international MITLA agrees that progress in recognising organisations and entities in publishing this and introducing a right to disconnect should position paper to seek feedback from other be propelled through the leadership all member states. stakeholders and social partners, and that THE MALTA IT LAW ASSOCIATION progress in this field, as is the case with many other issues affecting employee rights, can be realised through routes other than legislative intervention, such as sector specific regulations, industry self-regulation, stakeholder agreements, and negotiations. MITLA believes that at this stage, a general public debate and consultation is required to determine the public sentiment towards the introduction of this right with all stakeholders, including employees, employers, trade unions, and professionals. As a first step, MITLA shall bring together experts from all sectors to discuss this right during a free webinar taking place on 23 March 2021 at 4pm. Interested contributors are encouraged to visit https://www. eventbrite.com/e/webinar-right-to-disconnect- tickets-142873012025 for more information.