BEERG Newsletter – Working Time: EU Parliament considers a “right to disconnect”

A committee of the European Parliament will shortly consider and vote on a report from Alex Agius Saliba, a Maltese Labour Party member who was elected as an MEP in 2019, calling on the European Commission to bring forward legislation establishing a “right to disconnect” for European workers.

Once the report gets out of committee, it will then have to be voted on by the full Parliament but if the report gets through the committee then a vote in the full house will be pretty much a formality. 

While the report will call on the Commission to prepare a draft Directive on the right to disconnect there is no legal obligation on the Commission to actually do so. However, if the Commission declines to bring forward legislation it must explain in detail why it is refusing to do so. 

Whether or not the Commission decides to bring forward legislation, the Saliba report is a useful signpost to the thinking of a key group of legislators on a topic that is going to demand more and more attention given the widespread move to remote working now underway as a result of Covid 19.

The draft text, which can be found here, says that that the purpose of a Directive would be to lay down  

…minimum requirements to enable workers who use digital tools, including ICT, for work purposes, to exercise their right to disconnect and to ensure that employers respect workers’ right to disconnect. It applies to all sectors, both public and private, and to all workers, including on-demand workers, intermittent workers, voucher based-workers, platform workers, trainees and apprentices, provided that they fulfil the criteria for determining the status of a worker laid down by the CJEU. 

So, no exceptions.

According to the draft text “disconnect” means not to engage in work-related activities or communications by means of digital tools, directly or indirectly, outside working time, which itself means working time as defined in point (1) of Article 2 of Directive 2003/88/EC – the Working Time Directive.

Articles 3 and 4 are at the heart of the proposed legislation. Article 3 provides that: 

1. Member States shall ensure that employers provide workers with the means to exercise their right to disconnect. 
2. Member States shall ensure that employers record individual working times in an objective, reliable and accessible way. Any worker shall be allowed at any time to request and obtain the record of their working times. 
3. Members States shall ensure that employers implement the right to disconnect in a fair, lawful and transparent manner.

For its part, Article 4 stipulates that Member States shall provide for at least the following working conditions: 

1. the practical arrangements for switching off digital tools for work purposes, including any work-related monitoring or surveillance tools;
2. the manner in which employers record working time;
3. the content and frequency of employers’ health and safety assessments, including psychosocial risk assessments, with regard to the right to disconnect;
4. the criteria for any derogation by employers from their requirement to implement a worker’s right to disconnect;
5. in the case of a derogation under point (d), the criteria for determining how compensation for work performed outside working time is to be calculated;
6. the awareness-raising measures, including in-work training, to be taken by employers with regard to the working conditions referred to in this paragraph.

As already noted, the draft report should be voted on before year-end in committee and will then be considered by the full Parliament early in 2021. If the Commission were to react favourably to the call for legislation it would be some time later in 2021 before a text would be presented and it would then need to be considered by the Council of Ministers.

If adopted, there would be a two-year period for it to be transposed into national law. All things considered, it could be some 3 to 4 years from now before any such legislation became operative. 

BEERG COMMENT :

Over recent years the use of information and communications technology (ICT) has changed the nature of work for very substantial portions of the workforce. This was true before Covid 19 accelerated the already underway move to remote working (teleworking). For better or worse, we now live and work in an “always connected/always on” society.  

The Working Time Directive referenced in the draft Saliba report began to take shape back in the late 1980s, before becoming law in 1993. That is close on 30 years ago. It has remained fundamentally unchanged ever since. But the world of work today for millions is unrecognisable to the world in 1993. The 1993 Directive assumes a world where people “went to work” in the morning, coming home in the evening, or else worked on rotating shift patterns. “Taking work home” meant stuffing a bunch of files and papers in a briefcase. There was one phone line in a house, if at all. When you left the workplace that was it, until you turned up again the next day.

Fast forward to 2020. The smartphone in your hand has more computing power than some of the 1990 mainframes. You can phone from anywhere, no need for your phone to be plugged into a socket. You can send and receive data on your laptop at any time of the day or night. And, also, from anywhere. Work is cut loose from time and place. Which is especially true for those who work for global businesses, scattered across multiple time-zones. Are all these time-zones to work to an 8-hour European day?

Of course, this is not true for millions in manufacturing, hospitality, retail, and the health services, even if digitalisation is also impacting these sectors as the growth of Amazon, Uber Eats and the rest demonstrate.

But for the millions for whom it is true, legislative attempts to shoehorn technology-based working patters into 8-hour industrial days simply will not work and will not be welcomed. While Saliba may have consulted with trade unions in drafting his report and legislation, the blunt fact of the matter is that trade unions do not represent or speak for the overwhelming majority of the digital workforce. They are comfortable with old ways of working because much of the new undermines their organisational model.

There is a case to be made for measures that ensure work/life balances, that safeguard personal time, and that underpin the right to privacy. But before legislating any such measures there needs to be a much wider dialogue involving employee voices, especially the voices of the digital workforce. Legislators should ask them directly what they want. The digital tools are there to do so. 

Before legislating on the “right to disconnect”, the legislators should “connect” in the first place with those they are seeking to “protect”. They might be surprised at what they find. 

From BEERG Newsletter Issue #38 – Nov 19, 2020