News about young Wall Street analysts asking for an 80-hour working week and employees working from home for a year now due to the Covid pandemic gives rise to the question of whether employees have the right to disconnect. In this blog we will discuss recent legislative developments in the EU as well as the status of the right in the Netherlands.
European legislative initiative
On 21 January 2021 the European Parliament passed a legislative initiative on the right to disconnect. The initiative recommends implementing an EU directive that allows those who work digitally to disconnect outside their working hours without facing any adverse consequences. The directive should also establish minimum requirements for remote working and clarify working conditions, working hours and rest periods.
Generally speaking, as the European Parliament has passed the legislative initiative, the European Commission is required to put forward a proposal for a European directive. Once such directive is adopted, all Member States will have to implement it into national legislation. It is unclear when a draft directive will be published.
Legislative developments in the Netherlands.
In the Netherlands, a legislative proposal on the right to disconnect was submitted in July 2020 by a member of the Dutch parliament. This proposal is now awaiting the opinion of the Council of State. There is no indication of this advice can be expected. Once the advice is received, the proposal must go through the formal legislative process of the Dutch parliament.
The proposal suggests that current health and safety legislation includes an obligation on employers to enter into a discussion regarding employees’ online activity after working hours with their employees, employee representative bodies or trade unions. Employers must be able to demonstrate that they actually entered into this discussion. The reason for adopting this approach is that every business and organisation operates differently and deals with different types of demands. The proposal is therefore to keep the agreements about a right to disconnect between the employer and its employees (and/or their representatives), allowing for tailor-made rules for each sector and organisation.
The Dutch Inspectorate of Social Affairs and Employment will be authorised to check whether the discussion took place between the parties and, if not, it can issue a warning. The Inspectorate may also impose a ‘demand for compliance’ and, in extreme cases, an administrative penalty in case of non-compliance.
Current Dutch legal basis
It could be argued that an explicit statutory obligation is not strictly necessary due to the existing law in the Netherlands. Under the Working Time Act (Arbeidstijdenwet) maximum working hours and mandatory breaks are provided for, and health and safety rules and regulations (arbeidsomstandighedenwetgeving) already include obligations for employers concerning protecting the mental health of their employees. Also, the general Dutch law principle of “good employer-ship” could provide for a legal basis to apply a right to disconnect.
Another question is whether a statutory obligation to have a conversation is the answer to the ‘always on’ culture. There is, for example, no requirement to implement a company policy. So what is the required result of the conversation? In any case, the proposal raises awareness and puts the topic on the agenda, which might be the desired result. The decision to leave the discussion on this topic to the relevant parties within organisations and business sectors also seems to be the right approach. However, that is already possible without explicit legislation.
Recently, a number of collective labour agreements (CLAs) in the Netherlands, mainly in the health and childcare sector, include agreements on being offline after working hours. The CLA for the care of disabled persons includes a provision stating that the employee has the right to be unavailable for work on a day off and the CLA for childcare has a similar provision with an exception in case of an emergency situation. Finally, the CLA for nursing, care homes, home care and youth health care also contains an explicit right to disconnect on days off. These all, however, relate to disconnecting during a day off but do not yet clarify the position regarding working hours and how to deal with work related requests after working hours on working days.
Other countries and business examples
The Netherlands is not the only country in which the right to disconnect is on the political agenda. So far, France is the only European country where the right to disconnect is actually set out in law. The legislation in France, similar to the current Dutch proposal, sets out an obligation for the employer to negotiate with employee representative bodies or trade unions about when an employee has the right to be offline. If no collective agreement can be reached the employer is obliged to implement a company policy in this respect.
In Belgium, Luxembourg and Germany several large companies have already taken the initiative to grant their employees the right to disconnect. For example, BMW and Daimler in Germany have included in their company rules that employees do not have to answer work-related e-mails after working hours. Lidl in Belgium and Luxembourg implemented a delay for internal e-mails that are sent after 6pm. These will not be delivered to the internal recipient until 7am the next day.
Next steps in relation to the EU directive and/or Dutch legislation remain unclear and it might take some time before any concrete legislation is in place. Initiatives of social partners in the various industries and/or businesses themselves will likely evolve more quickly. That means that there is currently no direct legal obligation to take action, but this does not mean that it should not be on your “to do” list.
It is clear that the topic of being offline is on the political agenda and that also means that it is on society’s agenda. We can expect trade unions, works councils and/or individual employees increasingly to raise the matter with employers. This topic could be accelerated with the increase in working from home due to the COVID-19 pandemic. Both employers and employees have been confronted with new ways of working and this has led to various challenges. A ´working from home´ policy might therefore be on your “to do” list, or is perhaps already work in progress, and a right to disconnect should probably form part of such policy. Setting up such arrangements are also to be recommended from an industrial relations perspective.
We are happy to discuss working from home policies with you on and/or how to imbed a right to disconnect into your organisation. Do not hesitate to give one of our team members a call or to send an e-mail.