The world of work is undergoing a digital revolution. The growing use of digital and technological tools in recent decades has made it possible to work anywhere and at any time. The COVID-19 pandemic has only accelerated this trend. While the digitization of work and the expansion of remote work offer potential advantages in terms of flexibility, productivity, and work-life balance, these trends can also lead to an intensification of work, long working hours, blurred boundaries between work and rest time, or increased stress resulting from constant surveillance and monitoring of performance and productivity. These factors can, in turn, negatively affect employees’ physical and psychological health.
Consequently, it seems necessary to regulate certain aspects of the new digital work environment with the aim of mitigating at least some of the negative impacts arising from the frequent use of digital work tools. It is in this context that the right to disconnect (R2D) becomes relevant. The ten fundamental principles (Guiding Principles) defined by the ELI (European Law Institute) establish a balanced regulatory framework for the R2D in Europe.
The Guiding Principles, which are intended for all European legal systems, have a deliberately broad scope. Since the problem of excessive connectivity extends throughout Europe, it seems restrictive to limit the analysis to the EU. Both national legislation and EU legislative and policy documents are important sources of inspiration worldwide, including for Brazil. Particularly challenging is the level at which rules on disconnection should be applied and the individuals they should target. Subsidiarity, the interplay of sources, and scope are therefore fundamental aspects to consider.
The tension between large-scale regulation and the need to adapt R2D to the specificities of each country, sector, and company—in order to ensure its efficient and harmonious implementation—is reflected in these Guidelines. Special attention has been given to the careful coordination of regulatory sources in order to combine flexibility and adaptability with clear protection principles. Thus, although the R2D is intended to be applied uniformly throughout Europe, the specific rules and procedures for its implementation are left primarily to collective bargaining or, in the absence of such an option, to be regulated at the company or employee level. The idea is to respond to the realities of each workplace. However, this does not preclude the introduction of clear rules that ensure the effective implementation of the R2D. The result is a delicate balance between principles and implementation.
With regard to scope (Guiding Principle 2), the Guidelines propose an R2D that applies to all workers, as defined in EU and national legislation. This is consistent with its objectives: protecting workers’ health and achieving a better work-life balance. This implies that the R2D is not limited to specific categories of workers: it applies to all those who perform their work under conditions of control and subordination, which will critically include the falsely self-employed. On the other hand, managerial staff are included, provided they are in a position comparable to that of workers. However, even if a manager is entitled to the R2D, in principle, in the same way as their subordinates, the scope and terms of that right will not be the same, due to the specific nature of their responsibilities and activities.
Finally, special attention must be given to the alignment between the requirements and expectations imposed on employers and economic reality. It is important to consider the size of the companies in question and ensure that their obligations do not represent an excessive burden. The adaptation of their obligations (Guiding Principle 3), as well as collective bargaining on R2D (Guiding Principle 5), are likely to safeguard the interests of employers, regardless of their size and resources.
These Guiding Principles are the result of collective reflection and discussion, which led to specific proposals and choices. The overall goal is to reconcile the interests of all parties and, in particular, the imperatives of protection and flexibility, while ensuring broad application of R2D to all those who need it.
In recent decades, technological advances have led to a revolution in IT, opening up new opportunities for the world of work. Digital tools enable communication anywhere and at any time, offering endless possibilities for telework and remote work, thereby contributing to the disappearance of the concept of the workplace as a physical space. These developments can result in economic and social benefits and advantages, such as greater flexibility and autonomy, the potential to improve work-life balance, and reduced commuting times, but they also bring potential problems and disadvantages, particularly for certain professions. Among these problems, one that stands out is the potential for digital tools to lead to an intensification of work and an extension of working hours, blurring the boundaries between work and private life. When they foster an “always-on” culture, the use of digital tools in the workplace has detrimental effects on limiting working hours, negatively impacting work-life balance as well as workers’ physical and mental health. Furthermore, the “always-on” culture contradicts digital moderation policies aimed at environmental protection. The problems mentioned above have been exacerbated by changes resulting from the COVID-19 pandemic and, in particular, by the rise in telework, which until then had been a minority phenomenon in the EU. Eurofound’s research reveals some telling findings: more than one-third of workers across the EU began working from home during the pandemic lockdown, compared to 5% who normally worked from home, and there was a substantial increase in the use of digital tools for work purposes.
Better enforcement of existing legislation on working time and/or regulatory intervention is therefore required to protect workers from the negative effects of excessive use of digital work tools. In the EU, R2D is not explicitly regulated. Some Member States have introduced legal provisions on R2D into their legal systems, others rely primarily on collective bargaining to address the issue, and the majority have not adopted any measures. One risk of this fragmentation is that the balanced regulation of labor relations across Europe is threatened. This is the case despite the fact that working time has been regulated at the EU level, establishing minimum rest periods applicable, as a general rule, throughout the Union. Since the establishment of appropriate rules on R2D cannot be sufficiently achieved by the Member States individually but, due to its nature, scale, and effects, can be better achieved at the Union level, EU action on R2D appears appropriate and is in accordance with the principles of subsidiarity and proportionality enshrined in Article 5 of the Treaty on European Union (TEU).
Not surprisingly, the European Parliament has called for a proposal for a directive to ensure that workers are able to effectively exercise the R2D. This directive would complement Directive 2003/88/EC concerning certain aspects of the organization of working time, Directive (EU) 2019/1152 on transparent and predictable working conditions, Directive (EU) 2019/1158 on work-life balance for parents and caregivers, and Council Directive 89/391/EEC on the safety and health of workers.
Regulatory action at the EU level is also in line with the European Declaration on Digital Rights and Principles for the Digital Decade of 2023, issued by the European Commission, Parliament, and Council (European Declaration, 2023). This declaration explicitly mentions R2D in its section on fair and equitable working conditions, where it states that the EU is committed to “ensuring that everyone can disconnect and benefit from safeguards for work-life balance in a digital environment.” R2D should be viewed as a concrete measure to ensure that “all people have the right to fair, equitable, healthy, and safe working conditions and adequate protection in the digital environment, as well as in the physical workplace, regardless of their employment status, type of employment, or duration of employment,” as stated in the declaration.
Furthermore, R2D, as a specific right, helps define the boundaries between working time and rest time. Respect for working time and its predictability is considered essential to ensuring the health and safety of workers and their families. In this regard, the R2D aims to protect workers’ health and safety on the job, as well as to achieve a better work-life balance, which, in turn, has an impact on gender equality.
A prerequisite for the proper understanding and application of the R2D therefore involves consistent regulation of working time, including, in particular, maximum working hours, minimum rest periods, and clear definitions of working arrangements, such as “standby” and “on-call” periods. Under Directive 2003/88/EC, EU workers are entitled to minimum health and safety requirements regarding certain aspects of the organization of working time. In this context, the directive provides for daily rest, rest breaks, weekly rest, the maximum weekly working time, and paid annual leave, and regulates certain aspects of night work, shift work, and work patterns. According to the Court of Justice of the European Union (CJEU), on-call time, during which the worker is required to be physically present at a location specified by the employer, must be considered “full working time [...] ], regardless of whether, during periods of on-call duty, the employee does not continuously perform any professional activity.” On-call time, in the sense that the employee is required to be at the employer’s disposal and does not have the possibility to freely dispose of their time, must also be considered working time. Furthermore, the CJEU has interpreted minimum rest periods as “rules of Community social law of particular importance, from which all workers must benefit as a minimum requirement necessary to ensure the protection of their safety and health.” However, Directive 2003/88/EC does not expressly provide for a worker’s R2D, nor does it require workers to be available outside working hours, during rest periods, or other non-working periods; but it does provide for the right to uninterrupted daily, weekly, and annual rest periods, during which the worker must not be contacted or reachable.
The Guiding Principles contained in the ELI document seek to outline the main foundations for common regulations on R2D across Europe. These Principles are the result of an analysis of existing regulations at the national level. To a large extent, they also correspond to those underlying the European Parliament’s 2021 proposal (EP, 2021). However, on specific aspects, the Guiding Principles provide more in-depth reflections or broader analyses, including national examples from non-EU countries. The national or subnational jurisdictions analyzed for this purpose are Belgium, France, Germany, Greece, Ireland, Italy, Luxembourg, Spain, Sweden, Switzerland, Poland, and Portugal, some of which do not have explicit legal rules in force regarding R2D. Finally, the Guiding Principles incorporate ideas and findings from ongoing research on telework and its regulation. Ten Guiding Principles are proposed, providing the core content of a true “right to disconnect.” Each Principle is discussed to explain its context and rationale.
The full text of the paper with the 10 guiding principles can be found here.
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