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Fundamental right to disconnect after working hours

Fundamental right to disconnect after working hours

Lawyer and Managing Partner Dr Julia Andras discussed this exciting question in an interview with university professor and labour rights expert Dr Martin Gruber-Risak.

In a recent article on standard.at, there was talk of a ‘European fundamental right to disconnect after working hours’, which you commented on. What does this right include? 

Martin Gruber-Risak: Basically, this is about the undisturbed observance of the daily rest period, which is provided for both in EU law in the Working Time Directive and in Austrian labour law in the Working Time Act. Moreover, Art. 31 of the EU Charter of Fundamental Rights explicitly mentions that all workers have the right to daily and weekly rest. Although this means that the ‘right to disconnect’ is actually provided for at all levels, it is a tricky notion to enforce in practice. Digitalisation means that workers can be contacted around the clock for calls, emails and texts, especially on their smartphones. It is not uncommon for them to be expected to check emails and messages outside of their agreed working hours and to deal with them if they are urgent. We need to counteract this with an explicit right to be unavailable and it should be made clear that this should actually be the status quo – not the other way round. 

The most recent development in this regard is a resolution of the European Parliament adopted on 21 January 2021, which calls on the EU Commission to submit a legislative proposal that would allow workers to effectively exercise their right to be unavailable without needing to fear consequences. 

Are there countries within the European Union where a right to be unavailable has been enshrined in law already? What is the situation in Austria? In principle, there are statutory rest periods for employees under the Austrian Working Hours Act. 

Gruber-Risak: This kind of initiative at EU level follows on from developments in some Member States which have already introduced corresponding national regulations. First and foremost, there is France with its ‘Loi El Khomri’ from 2016. Among other elements, it contains a provision that companies with at least 50 employees need to implement company regulations that ensure the employees’ right to be unavailable, the ‘droit à la déconnexion’. An Italian law passed in 2017 even stipulates that company agreements on agile working must provide for technical and organisational measures to ensure that workers cannot be contacted on work-related technical equipment during rest periods. Similar provisions are also in force in Spain and Belgium. 

In Austria, however, there are no specific regulations on this subject. That said, the Working Hours Act states that rest periods may not be interrupted and that, unless it has been agreed that the employee will be on-call, workers do not have to be reachable outside working hours. In many instances, this is not the case in practice: companies expect that their employees are contactable, at least, around the clock. Having a fundamental right to be unavailable would make it clear that being unavailable during non-working hours should be the standard and that workers should not be left facing negative consequences if they switch off from work. Admittedly, the current government programme does not contain anything about this, nor does the draft ‘working-from-home package’ contain any provisions to this effect – although this would have been expected and align with European trends. 

Since the beginning of the coronavirus pandemic, Austria-based companies have largely switched to working-from-home models. For all its advantages, this approach is fraught with risk, too, such as the complete blurring of the boundaries between the working world and the employees’ leisure time. In this context, how should we view the demand for a fundamental right to be unavailable after working hours? 

Gruber-Risak: When you’re working from home, it is difficult to draw the line between self-determined working hours and externally determined phases, the length and scope of which are specifically determined by the employer in question. And is it indeed so self-determined when you have to home-school children and cook them a meal, which then means you need to shift some of the work from your day job into night-time hours? This gives employees the feeling of being overwhelmed by having to work all the time and never being able to switch off. 

In any case, this should not become a permanent state. Furthermore, hours spent working like this are often not documented: working-from-home brings with it the particular risk of unrecorded (and, by extension, unpaid) overtime. There is good reason why the law on working hours is mandatory for both sides, meaning that it is impossible to deviate from it, even if workers wish to do so. This is the only way to ensure that they do not put each other under pressure and spark a race to the bottom at the expense of their health and the weaker members of society. This is a particular danger at this moment, given the high unemployment rates. 

To what extent should a company’s works council be involved in the agreement on not being available after working hours? If a company does not have a works council, there will probably need to be individual contractual agreements with the employees? 

Gruber-Risak: Examples from other EU countries show that the most sensible level of regulation, as far as shaping this approach goes, is at company level. In turn, this means that a company agreement is an appropriate regulatory instrument for this. Whether this kind of regulation is designed to be enforceable before an arbitration body, or whether it takes the form of a statutory regulation with an opt-out solution by way of a works agreement, is then only a question of detail. And yes, of course, if a company does not have a works council, they will have to give some thought to this. Personally, I am a big fan of model agreements that are agreed with the company’s social partners and which should then be used as a benchmark for good governance in the company. 

In recent years, we have seen the working world become increasingly digital (what people call Work 4.0), as well as increasingly flexible, with the option to work from home, or to be given a company mobile phone as a perk, meaning that people can be contacted outside of working hours. Wouldn’t this development be slowed down again by a fundamental right to unavailability? How can this idea of flexibility be reconciled with the demand for a fundamental right to unavailability? 

At present, we are frequently exposed to the narrative that any regulation would ultimately be to the detriment of employees, as they only stand to gain from flexibilisation. This was particularly evident in 2018, when the overarching 12-hour day was introduced. 

No matter how nicely it is packaged, flexibility and freedom lead to exploitative conditions if they are not paired with protection for the weaker party to the contract. People have been well aware of this as far back as the 19th century and this realisation was also the basis for the creation of labour law. It is understandable that, today, no one likes to define themselves as in need of protection, but ultimately, this leads us down the wrong path. The most recent example is the platform economy, which uses precisely this narrative to lure platform workers into self-employment. When they fall ill or even suffer from burnout, they realise how good it would have been to have protection under labour law. 

You pointed out that a pragmatic solution would have to do justice to both aspects, i.e. the flexibility demanded in the world of work, on the one hand, and workers‘ right to rest periods, on the other. What do you think this kind of pragmatic solution could look like? 

Gruber-Risak: I‘m not at all sure whether we actually need as much flexibility as people are always calling for. In any case, working without clear boundaries does not always necessarily suit people and their needs– and setting your own hours is not as great as it is always said to be. At the end of the day, it’s still a hierarchical employment relationship that people enter into in order to earn a living. This makes it easy for me to understand why the right to be unavailable should be given special status and why minimum rest periods should not be sacrificed for the sake of supposed autonomy. 

Do you think the coronavirus pandemic will bring lasting changes in terms of our working world? Is working from home here to stay or is it now simply the best-case scenario for coming to terms with the current situation? 

Gruber-Risak: Thinking about working from home, a large part of the working population has become disillusioned with the promises of a perfect work-life balance that are often conveyed in the media. Apart from the time spent commuting, it is not much different from being in the office – but you lose the personal contact with your colleagues. This is also important for a good, productive collaboration. On the other hand, working from home also has its merits, meaning that employees can work without interruptions, at their own pace and in their own order. This means that it is not an ‘either/or’ situation: it’s a ‘both/and’ situation. As always, the dose makes the poison. 


AUTHORS:

Dr. Julia Andras, Attorney-at-Law and Managing Partner at LANSKY, GANZGER + partner
ao. Univ.-Prof. Dr. Martin Gruber-Risak, Lecturer and Researcher at the Institute for Labour and Social Law at the University of Vienna (Photo: Peter Reitmayer)

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