Right to disconnect

Legal basis and content of the right

Article 88 of Organic Law 3/2018 recognizes the right to digital disconnection for workers and public employees. It refers to collective bargaining or, failing that, to agreements between the company and employee representatives to define how this right is exercised. The law also requires employers to have an internal policy, applicable to all staff, including management, that outlines how this right is exercised and includes training and awareness-raising activities. The provision expressly states that the right to disconnect will be preserved in cases of full or partial remote work and work performed at the employee’s home involving the use of technological tools.

Article 20 bis of the Workers’ Statute, introduced by the same organic law, recognizes the right of workers to privacy in the use of digital devices provided by their employer, the right to digital disconnection, and the right to privacy regarding the use of video surveillance and geolocation devices, under the terms established in data protection legislation and the guarantee of digital rights. Law 10/2021 dedicates its Article 18 to the right to digital disconnection for remote workers, obliges companies to guarantee the limitation of the use of technological means outside of working hours, and establishes that internal policies must include training and awareness-raising activities, with special attention to management positions.

At the European level, the European Parliament adopted a resolution on January 21, 2021, with recommendations to the Commission on the right to disconnect. In it, the Parliament calls for a directive guaranteeing this right as a fundamental right and linking it to occupational safety and health and the organization of working time. Directive 2003/88/EC on the organization of working time, with its minimum daily and weekly rest periods, constitutes the EU reference point on which this right is based.

Digital disconnection and prevention of occupational risks

• Psychosocial risks. Constant connectivity informally extends the workday, increases mental workload, hinders recovery, and fosters work-life conflict; these factors should be included in the psychosocial risk assessment .
• Computer fatigue and technostress. The law expressly mentions the risk of computer fatigue; continued exposure to devices, notifications, and digital multitasking can lead to fatigue, anxiety, and sleep disturbances.
• Working time. The mandatory time registration of article 34.9 of the Workers’ Statute allows the detection of the extension of working hours associated with the use of devices outside of working hours.
• Remote work. In teleworking , disconnecting is more difficult due to the lack of physical separation between the work and home environments; the remote work agreement should cover its various aspects.
• Management and leadership positions. People with management responsibilities are both the most exposed and those whose behavior influences the disconnection of their teams.
• Exceptions. The policy may provide for cases of force majeure or exceptional circumstances that justify communication outside of working hours, defined restrictively and with compensation where appropriate.
• Equality. Disconnection is a tool for work-life balance and shared responsibility and is usually integrated into equality plans.

Content of a digital disconnection policy

• Scope and recipients. All staff, including managers, remote staff and people with flexible or shift work, with the necessary adaptations.
• Disconnection periods. Definition of the periods in which no response to communications is expected (outside of working hours, breaks, holidays, leave, temporary disability ).
• Communication rules. Use of scheduled emails, indication that no response is expected outside of business hours, channel priority, and criteria for meetings.
• Exceptions and compensation. Exceptional cases defined, persons authorized to activate the exception and compensation for time spent.
• Training and awareness-raising. Actions on the reasonable use of digital tools, notification management and prevention of computer fatigue, with special attention to managers.
• Guarantees. Prohibition of retaliation for exercising the right, consultation and complaint channel and follow-up by legal representation.
• Evaluation and review. Indicators (emails and after-hours connections, results of the psychosocial evaluation, surveys) and periodic review of the policy.

Organizational application: how to implement digital disconnection

1. Analyze the starting situation: results of the psychosocial risk assessment, data from the time log, patterns of emails and connections outside of working hours, and consultation with the staff.
2. Negotiate or consult the policy with the legal representation of the workers, in accordance with Article 88 of Organic Law 3/2018 and as provided for in the collective agreement.
3. Draft the policy with scope, disconnection periods, communication rules, defined exceptions, compensation, guarantees and responsible parties.
4. Incorporate disconnection options into remote work agreements and equality plans.
5. Train and raise awareness among all staff, with specific actions for managers and supervisors, and configure tools (scheduled sending, notification muting, automatic alerts).
6. Integrate disconnection into the assessment of psychosocial risks and preventive planning, with measures on workload and organization when off-hours connection is due to excessive tasks.
7. Measure with indicators, review the policy periodically, and report to the health and safety committee.

Preventive management software allows you to link the disconnection policy to the psychosocial risk assessment, plan and record training, document the consultation with legal representation, and track indicators with traceability.

Limits and common mistakes

1. To approve a policy without a hearing of the legal representation or to limit it to a generic statement without specific modalities of exercise.
2. Excluding management positions or remote staff, when the law requires special attention to both groups.
3. Defining exceptions so broad that they empty the law of its content.
4. Treating disconnection solely as a technological issue without addressing the workload caused by connecting outside of working hours.
5. Do not train or raise awareness, particularly among those who send the communications.
6. Not integrating disconnection into the assessment of psychosocial risks or measuring its compliance.

The specific ways in which the right is exercised depend on collective bargaining and the internal policy of each organization; this document is for informational purposes only.

Regulatory and reference framework

• Organic Law 3/2018, of December 5. Protection of Personal Data and guarantee of digital rights; article 88, right to digital disconnection in the workplace.
• Royal Legislative Decree 2/2015, of October 23. Consolidated text of the Workers’ Statute Law; articles 20 bis (digital rights) and 34 (working hours and timekeeping).
• Law 10/2021, of July 9. Remote work; article 18, right to digital disconnection.
• Law 31/1995, of November 8. Law on the Prevention of Occupational Risks; risk assessment, including psychosocial risks, and preventive planning.
• Directive 2003/88/EC . Organization of working time; minimum daily and weekly rest periods.
• European Parliament resolution of 21 January 2021. Recommendations addressed to the Commission on the right to disconnect.

Collective agreements can develop the modalities of exercising the right, and the INSST and the European Agency for Safety and Health at Work publish materials on psychosocial risks associated with digitalization.