The right to digital disconnection in the workplace aims to prevent employees from being subjected to the pressure that can result from continued instructions from the company outside of working hours. It aims to protect employees from intrusions by the company that seeks to keep them at its service even outside of working hours.

The employment relationship has limits, schedules, rest periods, holidays, vacations, etc., and if the company intends to continue exercising management power after the end of the workday, it exceeds its powers and the working hours established in the contract.

This is regulated by Article 88 of Organic Law 3/2018 on the Protection of Personal Data and the Guarantee of Digital Rights; Article 20 bis of the ET ; and Article 18 of Royal Decree-Law 28/2020 on remote work.

To set the limits, the ORGANIC LAW ON DATA PROTECTION refers to collective bargaining or to agreements between the company and employee representatives. The legislator takes this opportunity to include, in the third paragraph of Article 88, management positions—the main beneficiaries of this indirect right—in the mandatory internal policy, in the awareness campaign, and in training activities that prevent the risk of computer fatigue.

It also addresses teleworking, where the boundaries between personal and work life are more blurred. The increasing flexibility in the organization of working hours, the disappearance of working hours, and hiring based on objectives or results make it even more difficult to identify and recognize this right.

Please note that articles 87 to 91 of the Data Protection Act regulate important aspects related to:

Article 87. Right to privacy and use of digital devices in the workplace

Article 89. Right to privacy regarding the use of video surveillance and sound recording devices in the workplace.

Article 90. Right to privacy regarding the use of geolocation systems in the workplace.

Article 91. Digital rights in collective bargaining.

It affects all companies and self-employed individuals with at least one employee, including managers.

It is important to note that for employees whose employment contract stipulates availability time, the company may exclude them from certain aspects of the protocol due to the very nature of the availability agreement, but always respecting periods outside that availability time and fulfilling their obligations to pay the availability bonus.

As we have already said, no. Teleworking obviously implies that since the worker is carrying out his or her work with intensive use of electronic means from his or her home or another location other than the company's usual workplace, there must therefore be a digital disconnection protocol, but likewise for workers who do not telework, there must also be a protocol.

In short, whether or not you have remote workers or telecommuters, there must be a digital disconnection protocol.

Under LISOS (Law on Infractions and Sanctions in the Social Order), this can constitute a serious offense and a fine of between €625 and €6,250. It can even become a very serious offense, with a fine of €6,251 to €187,215, if the conduct involves repeated harassment and the continuous sending of emails.

The truth is that at the moment we are already seeing inspection actions and sanctions from the Labor and Social Security Inspectorate in which fines of up to 7,500 euros have been imposed in certain cases when it has been detected by the inspection that certain companies have assigned tasks to workers on furlough leave, or for repeatedly calling or sending WhatsApp messages, SMS or emails to their workers outside of working hours, or contacting workers with reduced hours to care for a minor, all of this, according to the inspection following the regulations and criteria of the technical criterion of inspection No. 104-2021 of April 2021, which places emphasis on the prevention of psychosocial risks, work-life balance, work-life balance, among others.

Another consequence of not having a protocol is that there could be a reversal of the burden of proof in a labor process if a worker alleges a violation of that right before the labor inspectorate or the social court, so the company would be required to demonstrate that there is no violation of the alleged right.

Either ex officio, through specific campaigns, or by prior complaint.

We must keep in mind that inspections are finding it increasingly easier to monitor how companies and self-employed individuals with employees comply with these obligations. How? By reviewing workday records, requesting logs of teleworking connections, call logs, or when there is a complaint about WhatsApp or calls that the complaining employees can prove. Let's not forget that an employee has the right to legally use conversations, chats, and recordings made with their superiors in the scope of their work to file complaints or lawsuits.

No.

There is no official model as such, but we can indicate that it should have a minimum recommended content:

1- A normative reference.

2- Scope of application, that is, which workers are affected, whether it affects managers directly or whether they will have their own regulation in the employment contract, etc.

3. Rights recognized by the company, respecting the legal minimums, that is, specifically stating when and why employees have the right to not be dependent on their phone or electronic devices for work-related matters.

4- Specific measures that the company, if any, has negotiated with the legal representation of the workers, which must be applied for different cases, for example, that meetings will not be held during hours close to the end of the working day, that

5- Exceptions, for example, that workers may be contacted outside of working hours when there are emergency situations that could result in serious harm to the company or third parties.

6- Rules for the validity and monitoring of the protocol, i.e., its temporal validity and what will be required for its renewal or update. In this regard, please indicate whether there is employee representation.

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