In times of increasing de-limitation of work: The chances for a European "Right to disconnect”
The pandemic has accelerated existing challenges of digitalisation in the work life, like intensifying work and extending working hours. Moreover, it profoundly touches the question of Sunday protection. Most of us might have realised: Work is increasingly timely and locally unbound. MEP Alex Agius Saliba (S&D/Malta) presented in July 2020 a legislative-initiative draft report on an EU-wide right to disconnect in the European Parliament Committee on Employment and Social Affairs (EMPL Committee) in order to address the challenge of blurring boundaries between work and private life in Europe. The report contains recommendations for a legal act and invites the European Commission to submit a legislative proposal on the right to disconnect.
The report was preceded by an opinion of the European Parliament's Research Service. In its brief opinion in summer 2020, the Research Service held that the introduction of such a right would be appropriate in legal terms. The Research Service recalled that the European Court of Justice had held in 2018 in caseC-518/15 that the stand-by time of a worker who is obliged to respond to calls from the employer within a short period of time at home must be regarded as "working time", and moreover, in 2019 the same Court had held in case C-55/18, that member states must require employers to set up a system enabling the duration of daily working time to be measured. In addition, the Research Service’s opinion gave examples from national practice: In 2018, the French ‘Cour de Cassation’, the highest ordinary court in France, ordered the British cleaning company "Rentokil Initial" to pay remuneration to an employee for requiring him to be available nonstop. The court thus recognised a contractual ‘droit à la déconnexion’. The French legislator reacted quickly and introduced Article L.2242-17 in the ‘Code du travail’. According to the Research Service, in other member states there is no specific legislation for a right to disconnect, but some employers, e. g. in Germany, voluntarily introduced restrictions on accessibility outside working hours, so that binding standards would be desirable throughout Europe. In his own-initiative report rapporteur MEP Agius Saliba thus proposes the adoption of a new directive to set a common benchmark for all member states. It should commit member states to the objective of ensuring a reliable recording of working time and thus to ensure a legally enforceable right to disconnect. This should include practical modalities for switching off digital tools for work purposes, including all monitoring and control tools.
In our view as the European Sunday Alliance, the challenges of the digital transformation have been accelerating during the COVID-19 pandemic and have also affected the Sunday as an established common day of rest in the Member States. Therefore, we empasised towards the decision-takers in the European Parliament that a right to disconnect should include a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest. Concretely, we pleaded to streamline a right to disconnect with Article 2 of the Revised European Social Charter of 3 May 1996 on the right to just working conditions, which already includes provisions in this regard. Despite controversial discussions in the European Parliament committee (concerning possible bureaucratic administrative burdens for employers and the danger of duplication with existing national-level legal acts), its committee members agreed on a report in December 2020, which the plenary adopted, slightly modified, in January 2021. As a result of our advocacy activities, the finally adopted text contains significant parts of our priorities and improves chances for a more specific protection of work-free Sunday in a future legal proposal.
The European Sunday Alliance supports the report of the European Parliament and trusts that the European Commission will soon put forward a proposal for a directive on a right to disconnect which endorses a common day of rest in the Member States: Regardless of whether a proposal covers the protection of Sundays it offers now more than ever the chance to stop developments of increasing dissolution of boundaries of work and – in our view – it makes it inevitable for lawmakers to reflect on the question of what value we want to give to Sunday protection.