¿Cómo garantizar el bienestar de los empleados en la era digital? Discutiendo (nuevas) políticas de jornada laboral como medidas de salud y seguridad
| Autor | Anna Ginès i Fabrellas |
| Cargo | Universitat Ramon Llull (Esade Law School) |
| Páginas | 1-15 |
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IDP No. 35 (March, 2022) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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2022, Anna Ginès i Fabrellas
of this edition: 2022, Universitat Oberta de Catalunya
ARTICLE
How to ensure employees’ well-
being in the digital age?Discussing
(new) working time policies as
health and safety measures
1
Anna Ginès i Fabrellas
Universitat Ramon Llull (Esade Law School)
Date of submission: October 2021
Accepted in: February 2022
Published in: March 2022
Abstract
Technology and flexible work arrangements have potentially positive effects on employees’ well-being,
by favouring autonomy, work-life balance, reduced role conflicts and stress. Nevertheless, they can
also trigger new psychosocial risks derived from intensification of work, overlap between work and life,
constant connectivity, and permanent availability. In this context, this paper carries out a legal analysis
of working time policies recently recognized at a European level to determine their opportunity and
potential to contribute to employees’ well-being in the digital age. In this sense, the paper analyses
working time policies recently recognized by the European Court of Justice or by member states and
their potential impact on workers’ well-being. The aim of the paper is to determine whether the current
legal regulation of such working time policies can potentially contribute to employees’ well-being by
limiting the negative effects of technology and flexibility, while simultaneously allowing the positive
ones. The key results of the paper are that there is opportunity and potential for working time policies
to contribute to employees’ well-being in the digital age, as they act as health and safety measures
by ensuring that maximum working times, minimum rest periods and adequate work-life balances
are respected. The Covid-19 pandemic has unleashed an enormous potential for flexible work, and
teleworking is likely to become more common post-crisis, given the generally positive experiences of
workers and employers. In this context, working time policies have the capacity and potential to act as
health and safety measures and contribute to employees’ well-being.
Keywords
technology; well-being; flexible work arrangements; health and safety; right to disconnect; registry of
working time
1. Paper presented at the “6th Conference of the Regulating for Decent Work Network” at the International Labour
Office Geneva, Switzerland, 8-10 July 2019.
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2022, Anna Ginès i Fabrellas
of this edition: 2022, Universitat Oberta de Catalunya
¿Cómo garantizar el bienestar de los empleados en la era digital?
Discutiendo (nuevas) políticas de jornada laboral como medidas
de salud y seguridad
Resumen
La tecnología y los acuerdos de trabajo flexibles tienen efectos potencialmente positivos en el bien-
estar de los empleados, al favorecer la autonomía, el equilibrio entre la vida laboral y personal, la
reducción de los conflictos de roles y el estrés. Sin embargo, también pueden desencadenar nuevos
riesgos psicosociales derivados de la intensificación del trabajo, la superposición entre trabajo y vida,
la conectividad constante y la disponibilidad permanente. En este contexto, el documento lleva a cabo
un análisis jurídico de las políticas de jornada laboral recientemente reconocidas a nivel europeo para
determinar su oportunidad y potencial para contribuir al bienestar de los empleados en la era digital.
En este sentido, el documento analiza las políticas de jornada laboral recientemente reconocidas por
el Tribunal de Justicia de la Unión Europea o por los Estados miembros y su impacto potencial en el
bienestar de los trabajadores. El objetivo del documento es determinar si la regulación legal actual de
tales políticas de jornada laboral puede contribuir potencialmente al bienestar de los empleados al
limitar los efectos negativos de la tecnología y la flexibilidad y, al mismo tiempo, permitir los positivos.
Las principales conclusiones del documento son que existe la oportunidad y el potencial de que las
políticas de jornada laboral contribuyan al bienestar de los empleados en la era digital, ya que actúan
como medidas de salud y seguridad al garantizar el respeto del tiempo de trabajo máximo, los perio-
dos mínimos de descanso y el equilibrio adecuado entre vida laboral y personal. La pandemia de la
COVID-19 ha desatado un enorme potencial para el trabajo flexible, y es probable que el teletrabajo se
vuelva más común después de la crisis, dada la experiencia generalmente positiva de los trabajadores
y empleadores. En este contexto, las políticas de jornada laboral tienen la capacidad y el potencial de
actuar como medidas de salud y seguridad y contribuir al bienestar de los empleados.
Palabras clave
tecnología; bienestar; modalidades de trabajo flexibles; salud y seguridad; derecho a desconectar; re-
gistro de jornada laboral
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Introduction
The modernization of labour relations by technology has
introduced more flexibility to the work process, as it al-
lows for the dislocation of work from the company, by en-
abling employees to work practically “anytime, anywhere”
(Messenger, 2017). The widespread use in labour relations
of laptops, tablets, internet-connected smartphones and
cloud computing systems, allows employees to telework
or work from home,
2
have flexible schedules, and even to
continue working outside their contracted hours.
Flexible work arrangements, defined as an organization of
working time which allows working hours to be scheduled
flexibly, varying from day to day or week to week (ILO,
2019b),
3
allow employees to determine when they work,
where they work and through which communication me-
dium they work, which allows for high levels of flexibility.
The research report Working conditions in a global per-
spective (Eurofound and ILO, 2019) concludes that some
degree of flexibility on working time is frequent among
43% of workers in EU countries. Specifically, 11% can
choose between different schedules, 27% have flexible
working hours or flexitime and 6% determine their
schedule entirely. However, 15% report changes to their
working hours on the day or the day before and 15%
work more than 48 hours per week. Furthermore, 22%
of employees work during their free time, increasing to
up to 60% for teleworkers, up to 40% of women, and
48% of men in mobile technologically intensive jobs
(Eurofound, 2020d).
Telework or home-based work has also increased in recent
years, although prior to the COVID-19 pandemic it was still
a relatively rare form of work. According to data from 2017
(Eurostat, 2018), only 5% of workers in the European Un-
ion worked exclusively from home and 9.6% worked from
home sometimes. This was considered a surprisingly low
percentage, given that 57% of workers worked with in-
2. The terms remote work, telework and home-based work refer to work that is partially or fully done off company premises. However,
while remote work is the broader concept, telework is the subcategory that refers to work carried out remotely with the use of electronic
devices, and home-based work refers to work carried out within the worker’s home (European Commission, 2020).
3. Working time arrangements, or WTA, refers to the organization and scheduling of working time during a specified reference day, week,
month, or longer period, which can include different forms of arrangements, such as fixed working hours, part-time work, shift work,
night work, flexible work or flexitime (ILO, 2019b). In this context, telework or home-based work have been identified as a specific form
of flexible work (Stavrou, 2005; Stavrou and Kilaniotis, 2010).
formation and communication technologies to a medium
or high degree (Eurostat, 2015). Furthermore, there were
interesting sex and age differences, with home-based
telework being more common among women and workers
aged between 50-64 years (Eurostat, 2018).
The COVID-19 pandemic has significantly changed the way
people work, intensifying the use of information and com-
munication technologies and flexible work arrangements,
including telework or home-based work. In this sense,
according to the report Living, working and COVID-19
produced by Eurofound (2020a), the use of digital tools
for work purposes has increased substantially and 37% of
workers in the European Union worked exclusively from
home during Spring 2020, with nearly half working from
home at least part of the time, which constitutes a signif-
icant increase compared to data prior to the pandemic.
Telework or home-based work offers workers unprecedent-
ed autonomy and flexibility in determining where and when
to work (Eurofound, 2020c). However, 27% of employees
working from home responded that they had to work dur-
ing their free time in order to meet work demands and 22%
with children under 12 reported struggling with concentrat-
ing on work, especially women who noted more work-family
conflicts due to the “double burden” (Eurofound, 2020a).
Furthermore, as analysed by Delfino and Van der Kolt (2021),
the shift to telework due to the COVID-19 outbreak led some
employers to modify their management control practices
with more online meetings or the use of technology to
monitor employees. Workers reacted to such changes with
“voluntary visibilizing practices” to guarantee they were
being noticed (Hafermalz, 2020). Furthermore, according
to the 2020 ILO study Managing work-related psychosocial
risks during the COVID-19 pandemic, psychosocial risks of
isolation and blurred boundaries between work and person-
al time increased for people working from home during the
early months of the pandemic, as well as other issues such
as domestic violence, fear of losing the job, pay cuts, job
insecurity, and so on.
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As analysed in the following section, technology and flexi-
ble work arrangements have potentially both positive and
negative effects on employees’ well-being. In this sense,
the paper analyses working time policies recently rec-
ognized by the European Court of Justice or by member
states and their potential impact on workers’ well-being.
The aim of the paper is to determine whether the current
legal regulation of such working time policies can poten-
tially contribute to employees’ well-being by limiting the
negative effects of technology and flexibility while simul-
taneously allowing the positive ones.
The key results of the paper are that there is opportunity
and potential for working time policies to contribute to
employees’ well-being in the digital age, as they act as
health and safety measures by ensuring that maximum
working times, minimum rest periods and adequate work-
life balances are respected. The COVID-19 pandemic has
“unleashed the huge unexploited potential for flexible
working” (Eurofound, 2020b) and telework is likely to be-
come more common post-crisis, given the generally pos-
itive experiences of workers and employers (Eurofound,
2020a). In this context, working time policies have the ca-
pacity and potential to act as health and safety measures
and contribute to employees’ well-being.
1. Technology, exibility, and
employees’ well-being: a review of
the literature
Flexible work arrangements, including telework, produce
positive effects on employees’ well-being, increasing job
satisfaction work-life balance, reducing role conflicts and
stress (Gajendran and Harrison, 2007; ter Hoeven and van
Zoonen, 2015; among others). Work-life balance can im-
prove with flexible work arrangements, as more autonomy
and control over working time allows employees to better
coordinate work and family responsibilities (Eurofound
and ILO, 2017), which, in its turn, reduces work-family con-
flicts and stress (Nadeem and Metcalf, 2007; Almer and
Kaplan, 2002).
Positive effects on work-life balance have also been iden-
tified when specifically analysing telework (Gajendran
and Harrison, 2007). The positive impact of telework on
work-life balance is shown in the fact that women are
more likely to undertake regular home-based telework,
which reflects the traditional gender roles regarding car-
ing responsibilities that persist (Eurofound 2020d). Fur-
thermore, employees who carry out regular home-based
telework - both women and men - report a better work-life
balance than those who always work on company premis-
es or with occasional telework (Eurofound and ILO, 2017).
Nevertheless, the positive effects of flexible work ar-
rangements on employees’ well-being are not conclusive,
as other studies suggest that they can be contingent on
the nature of the flexible work arrangement or employ-
ees’ perceptions (de Menezes and Kelliher, 2011), on senior
management valuing work-life balance (Wood and de Men-
ezes, 2007; 593), or on whether flexibility implies working
time that is in addition to regular working hours (Messen-
ger, 2019). Sparks et al. (2001) suggest that flexibility on
working time reduces stress only when employees have
effective control over their working time and when the
prevailing organization culture neither prevents nor dis-
courages the full utilization of flexible schemes.
Furthermore, other studies identify potentially negative
effects of technology and flexibility on employees’ well-be-
ing (de Menezes and Kelliher, 2011), paradoxically due to a
potential increase of stress and work-family conflict.
Firstly, the widespread and intensive use of information
and communications technologies in the workplace is a
potential new source of stress (Dias Pochinho and Costa
García, 2008). Technostress emerges as a new form of
stress, defined as the inability to face new technologies
in a psychologically healthy way: the product of a com-
bination of anxiety, information overload, role conflict
and organizational factors (Alfaro de Prado, 2008).
Furthermore, the use of information and communication
technology can generate additional stress due to constant
interruptions, irregular work and unpredictable work de-
velopments (Golden, 2001; Jarvenpaa and Lang, 2005;
Thomas et al., 2006). In words used by Chesley (2014),
“technology use is fragmenting daily experiences in ways
that are potentially stressful”.
Secondly, employee perception of the need to reciprocate
instantaneous exchange of information with work inten-
sification and constant connectivity and availability can
increase stress and deteriorate employees’ well-being
(Towers et al., 2006; LEONARDI et al., 2010; Chesley, 2014;
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Arrieta Idiákez, 2021). In this sense, research shows that
employees in flexible work arrangements using digital
devices are more likely to work more hours, work more
during their free time, have more unpredictable hours and
less rest periods and, as a result, more likely have a poor
work-life balance (Eurofound 2020d).
Thirdly, technology and flexible work arrangements can
also increase work-family conflicts and, in turn, stress.
The use of wireless electronic devices and cloud com-
puting systems creates a “virtual office” (Messenger and
Gschwind, 2016) that allows work to be performed from
anywhere –including employees’ homes– and, as a result,
working time can potentially overlap with personal and
family time. Differentiating between working time and
personal time becomes more difficult (Gajendran and
Harrison, 2007), and flexible work arrangements that
allow integration between work and life - although not
necessarily nor inevitably - can backfire, since they can
compromise the integrity of work or home (Ashford et al.,
2000) and generate the - true or false - perception of not
fully complying with either work or family and personal
obligations.
Stress can present with different symptoms, including fa-
tigue, exhaustion, burnout, sleep disorder, headache, mus-
cle tensions, memory loss, lack of motivation, depression,
or even heart attacks (Alfaro de Prado Sagrera, 2008).
The World Health Organization and the International
Labor Organization have estimated that excessively long
working days have caused 745,000 deaths due to strokes
and heart disease (Pega et al., 2021).
The negative impact of flexibility on work-life balance var-
ies among genders and parental status. Women are more
likely to have regular home-based telework, noting higher
satisfaction with their work-life balance, while men prevail
in highly mobile arrangements with a poorer work-life bal-
ance (Eurofound and ILO, 2017), although SONG and GAO
(2020) identify that the effect of home-based telework
on well-being also depends on whether or not employees
have children.
The existence of simultaneous positive and negative im-
pacts of technology and flexible work arrangements on
employees’ well-being has been identified as a paradox by
the literature: the “telecommuting paradox” described by
Gajendran and Harrison (2007) and Kelliher and Anderson
(2008); the “connectivity paradox” identified by Leonardi
et al. (2010) and Fonner and Roloff (2012): or the “auton-
omy paradox” referred by Mazmanian et al. (2013) and
Putman et al. (2014).
The challenge is to find an adequate balance between the
positive and negative effects derived from technology and
flexibility. In this context, the paper aims to analyse, from
a legal perspective, recently recognized working time
policies at European level to determine their ability and
potential to limit the negative effects of technology and
flexibility, while, at the same time, favouring the positive
ones of autonomy and work-life balance.
2. Working time policies as health
and safety measures
The EU regulation regarding health and safety measures
can be found, essentially, in the Council Directive 89/391/
EEC of 12 June 1989 on the introduction of measures to
encourage improvements in the safety and health of em-
ployees at work. Other regulations must be taken into con-
sideration, such as the European Framework Agreement
on telework signed ETUC, UNICE/UEAPME and CEEP on
July 16th, 2002 or the European Framework Agreement
on work-related stress concluded between ETUC, UNICE,
UEAPME and CEEP on October 8th, 2004.
Article 6(1) of the Directive 89/391/EEC establishes that
“the employer shall take the measures necessary for the
safety and health protection of workers, including preven-
tion of occupational risks and provision of information and
training, as well as provision of the necessary organization
and means”. This obligation entails protecting employees’
health and safety from physical and psychosocial risks by
carrying out a risk evaluation and adopting a health and
safety plan, including measures to eliminate or reduce
risks in the workplace.
Employers’ health and safety duty includes the obligation
to adopt measures related to all types of risks, including
physical and psychosocial risks. Both physical and psycho-
social health and safety measures contribute to employees’
well-being, as it includes “all aspects from working life,
from quality and safety of the physical environment, to how
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workers feel about their work, their work environment, the
climate at work and work organization” (ILO, 2009).
Focusing on the scope of the article, the employer’s health
and safety duty includes the obligation to adopt measures
to address the psychosocial risks derived from new tech-
nologies and flexible work arrangements. Working time pol-
icies act as health and safety measures and, in the context
of digitalization, are essential to guaranteeing employees’
well-being as technology and flexibility can lead to work in-
tensification, overlap between work and life, constant con-
nectivity, and permanent availability (Eurofound (2020a,
2020d) and the European Commission (2020)).
In this sense, the Directive 2003/88/EC of the European
Parliament and of the Council of 4 November 2003 con-
cerning certain aspects of the organization of working
time has a health and safety dimension. As declared by
the European Court of Justice, the aim of the Directive
is to guarantee employees’ health and safety by ensuring
minimum daily and weekly rest periods and maximum
duration of the working week (judgements of 5 October
2004, case Pfeiffer and others (C-397/01 to C-403/01) and
25 November 2010, case Fuß (C-429/09)). In essence, the
aim of the Directive is to improve employees’ living and
working conditions (judgment of 10 September 2015, case
Federación de Servicios Privados del sindicato Comisiones
Obreras, (C 266/14)).
In this context, control over working time has become a
compulsory health and safety measure and an employers’
obligation, as declared by the European Court of Justice
in the judgement of the Grand Chamber of 14 May 2019 in
the case of CCOO vs. Deutsche Bank, S.A.E. (C-55/18).
Control over working time has been a traditional and re-
current concern of Labour Law. In 1919, the ILO adopted
its first convention on hours of work, according to which,
as a general rule, “working hours of persons employed
in any public or private industrial undertaking or in any
branch thereof… shall not exceed eight in the day and
forty-eight in the week” (article 2). However, one hundred
years later in its Centenary Declaration, the ILO calls upon
all members to work on the basis of tripartism and social
dialogue, with the support of the ILO, to further develop its
human-centred approach to the future of work by, among
other things, strengthening the institutions of work to
ensure maximum limits on working time (ILO, 2019a).
The following section analyses, from a legal perspective,
working time policies recently recognized by the Europe-
an Court of Justice or by member states and their ability
to potentially contribute to employees’ well-being by limit-
ing the negative effects of technology and flexibility while
simultaneously allowing for the positive ones. Specifically,
this section analyses working time registry systems, lim-
itation on “on-call” and “stand-by” time and the right to
digitally disconnect as adequate policies for guaranteeing
maximum working hours, minimum rest periods and ade-
quate work-life balance.
2.1. Working time registry: old form of control
of working time incompatible with modern
times?
Working time registry systems are a working time policy
recently recognized as an employers’ obligation by the
European Court of Justice as a means to guarantee em-
ployees’ well-being, by fulfilling maximum working time
and minimum rest periods.
Under Articles 3 and 5 of Directive 2003/88, member
states have the obligation to take the necessary measures
to ensure that employees are entitled to the regulated
minimum daily rest period. Member States must ensure
that these minimum rest periods are observed and pre-
vent excess on the maximum weekly working time estab-
lished in article 6(b) of the Directive, to ensure the full
effectiveness of Directive 2003/88.
However, according to the ECJ’s judgement of 14 May
2019, the absence of an instrument that enables the ob-
jective and reliable determination of the number of hours
worked each day and each week does not guarantee this
effectiveness, “since it deprives both employers and work-
ers of the possibility of verifying whether those rights are
complied with and is therefore liable to compromise the
objective of that directive, which is to ensure better pro-
tection of the safety and health of workers”.
For this reason, the ECJ declared that Member States
must require employers to adopt systems to register
each employee’s daily working time. Nevertheless, the
specific arrangements for implementing such a registry
system will be determined by the Member States, which
can consider the characteristics of each sector, activity,
or undertakings.
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Practically coinciding with this judgement, the Spanish
legal system modified its working time regulation to in-
troduce, in article 34.9 of the Worker’s Statute, the em-
ployer’s obligation to adopt a registry system that records
employees’ daily working time (regarding this regulation,
see previous work Ginès i Fabrellas and Peña Moncho,
2020). Through collective bargaining or, in the absence
of agreement, consultation with workers’ representatives,
companies are obliged to register each employee’s begin-
ning and end of the workday, regardless of any flexible
work arrangements that might exist. Companies must
keep these logs for a period of four years, and they must
remain available for employees, their legal representa-
tives, and the Labour Inspection if requested.
The specific registry system will depend, however, on the
characteristics of the company, the service provided or
the place of work. In this sense, control over working time
can be carried out with traditional systems of clocking in
and out, using electronic cards or biometric systems, or
through electronic means, such as Apps, access through
the company’s intranet or cloud computing system, ge-
olocation systems or monitorization of e-mail activity or
internet navigation. However, the use of digital means to
control employees’ working time must guarantee their
right to privacy and protection of personal data (Todolí
Signes, 2021), including the data minimization principle of
the General Data Protection Regulation (Regulation (EU)
2016/679 of the European Parliament and of the Council
of 27 April 2016).
As anachronous with modern times as this measure might
seem, working time registry systems have the potential
to reduce the negative effects of technology and flexi-
bility identified by the literature in the previous section
(Eurofound, 2020d). By logging the beginning and end of
each working day, employees have information regarding
their working hours, which can contribute to reducing the
perception of having to work longer hours, intensify work
or be constantly connected and available. Furthermore,
by providing information regarding the number of hours
worked each day, week, or month, working time registries
can limit work-family conflicts and contribute to reducing
the overlap of work with family and personal life, by allow-
ing employees to better identify the lines between work
and personal time.
Working time registry systems also have the potential not
to offset the positive effects of technology and flexibility,
as they are not incompatible with flexibility, with employ-
ees’ autonomy in determining their working time nor
with a work organization based on objectives. Indeed, the
obligation to register working time only implies the reg-
istration of daily working hours, whatever these are and
by whoever is determined. Employees subject to flexible
work arrangements and with autonomy to determine their
working hours can continue to benefit from such flexibility
and autonomy, as the registry only requires logging the
beginning and end of each working day, not substituting
flexibility for rigid schedules (Ginès i Fabrellas and Peña
Moncho, 2020). Furthermore, and related with the next
section, working time registry systems are not incom-
patible either with “on-call” or “stand-by” time (García
Quiñones, 2015).
Finally, it is important to mention that working time reg-
istry system is an especially relevant health and safety
measure for telework, especially for intense telework,
defined as telework that affects more than 70% of the
employees working time for at least a year (Ginès i Fabrel-
las et al., 2021). Indeed, the registration of working time,
as well as the right to digitally disconnect discussed below,
are essential health and safety measures to address the
characteristic organizational and psychosocial risks of
telework (Mella Méndez, 2021). In this sense, a call must be
made to collective bargaining to regulate specific meas-
ures to guarantee workers’ health and safety in telework
(Goerlich Peset, 2021) - the Collective agreement of the
banking sector 2019-2023 with a dedicated section for
health and safety in telework is considered good practice.
The Spanish regulation on telework recently adopted by
Law 10/2021 offers an unexplored domain for collective
bargaining to regulate specific health and safety meas-
ures for telework, including access to employees’ homes,
specific measures for intense telework or measures to
prevent and address cyberbullying (de Stefano et al.,
2020; Ginès i Fabrellas et al., 2021).
2.2. Limitations on “on-call” or “stand-by” time
and implications for employees with exible
work arrangements
Limitations on “on-call” or “stand-by” time are another
working time policy that, although an existing and traditional
working time dilemma, have been recently reviewed by the
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European Court of Justice to adequately guarantee employ-
ees’ maximum working time and minimum rest periods.
Common in the health sector, “on-call” or “stand-by” time
can be regulated in other sectors and activities (García
Quiñones, 2015), as long as effective working time respects
the maximum working hours and minimum rest periods.
Paradoxically, the establishment of an “on-call” or
“stand-by” time in activities or companies with flexible
work arrangements, long working hours and/or frequent
unexpected work requests can be a potentially effective
measure of control over working time. The limitation over
“on-call” or “stand-by” time limits the overlap of work
over personal time and avoids excessive invasion. The es-
tablishment of a specific and express “on-call” or “stand-
by” time can potentially eliminate or reduce employee
perception and expectation of having to be constantly
available and connected, allows for a much clearer distinc-
tion between work and life and prevents unscheduled and
excessive extensions of working time into personal time.
Furthermore, the European Court of Justice has recently
reviewed the limits of “on-call” and “stand-by” time to
better guarantee employees’ maximum working hours
and minimum rest periods. The European Court of Jus-
tice’s position is that “on-call” time must be considered
working time as employees are required to be present
on company premises (judgment of 3 October 2000,
case Simap (C-303/98), 5 October 2004, case Pfeiffer (C-
397/01 to C-403/01) and 1 December 2005, case Dellas (C-
14/04), even when employees have access to a rest area
(judgement of 9 September 2003, case Jaeger (C-151/02).
When employees are on “stand-by”, that is, are merely
available and not required to be physically present, only
the time actually dedicated to the provision of services
will be regarded as working time. That is, the time during
which employees are available but not effectively working
is considered a rest period, since they can manage their
time and pursue their own interests with few constraints.
However, in the judgment of 21 February 2018, case Matzak
(C-518/15), the European Court of Justice reviewed its
doctrine and concluded that “stand-by” time where an
employee had to remain at home and respond to calls
from the employer within 8 minutes must be regarded as
working time since it “significantly restricting the oppor-
tunities for other activities”. In cases where employees’
movements are significantly restricted, “stand-by” time
must be considered working time (Beltran de Heredia
Ruiz, 2018).
The revision of the European Court of Justice’s doctrine
is, in my opinion, more adequate in terms of guarantee-
ing employees’ rest periods, as “on-call” or “stand-by”
time that requires immediate attention heavily restricts
employees’ movements and affects workers’ options for
work-life balance, hence not fulfilling the intrinsic charac-
teristics of rest periods.
2.3. The right to digitally disconnect
Finally, another working time policy recently recognized
in different member states that can contribute to employ-
ee’s well-being is the right to digitally disconnect, which
can be defined as the right to switch off from electronic
and digital devices outside working time.
Articles 3 to 5 of the Directive 2003/88 recognize em-
ployees’ right not to exceed maximum duration of working
time, which included the right to not provide services dur-
ing rest periods and hence the right to ignore phone calls,
messages, or e-mails during these periods.
Nevertheless, the right to digital disconnection cannot be
conflated with the right to effective rest periods. While
the latter is defined as employees’ right to minimum daily,
weekly, and annual rest periods, the former implies the
right to disconnect from electronic and digital devices
during rest periods to block any type of communication
from the employer or coworkers. The right to digital dis-
connection is, hence, an instrumental right to guarantee
the effectiveness of rest periods.
The right to digitally disconnect has been introduced in
recent years in some European legal systems, which is the
case of France in section 7 of article L. 2242-8 of the La-
bour Code (Auvergnon, 2015, Loïc, 2016), Italy in article 19
Law n. 81/2017 (Dagnino, 2020) and Spain in article 88 of
the Organic Law 3/2018, December 5th, on Personal Data
Protection and Digital Rights, article 20 bis of the Workers’
Statute and, more recently, article 18 of Law 10/2021, July
9, on telework (Ginès i Fabrellas et al., 2021, pp. 176-179).
At EU level, the European Parliament has recently pro-
posed the regulation of the right to digitally disconnect.
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The Resolution of the European Parliament of 21 January
2021 (2019/2181(INL)) includes recommendations to the
Commission on the employee’s right to disconnect from
digital tools, including information and communication
technology, for work purposes. According to this resolu-
tion, the right to disconnect “is vital to protecting their
[workers] physical and mental health and well-being and
to protecting them from psychological risks”. Further-
more, it is also included in the European Social Partners
Framework Agreement on Digitalisation (June 2020).
Addressing some of the concerns voiced regarding the
right to digitally disconnect in the sense that it was already
recognized under the right to rest (Vallecillo Gámez, 2017;
Molina Navarrete, 2017), in my opinion, it is a mistake to
conceive the right to digitally disconnect merely as an em-
ployees’ right. The right to digitally disconnect requires fo-
cusing, not only on the receiving end of the communication,
but mainly on the sending end. That is, it must be conceived
as an employers’ obligation to adopt the necessary meas-
ures to avoid communications outside working hours. The
effectiveness of the right to digitally disconnect requires
just not recognizing employees’ right to switch off their
electronic devices outside office hours - something already
guaranteed under the right to minimum rest periods - but
also the employer’s obligation to adopt measures to guar-
antee absence of contact during rest periods (as concluded
in previous work Ginès i Fabrellas and Peña Moncho, 2020,
as well as by other authors specifically analysing this issue
Gutiérrez Colominas, 2020).
4
The right to digitally disconnect appears as a necessary
policy to guarantee not only respect of the right to rest
in an environment where the line between work and life is
increasingly blurred, but also to prevent new psychosocial
risks derived from the intensive use of information and
communication technology in the workplace (see also Tru-
jllo Pons, 2021). In this sense, Gschwind and Vargas (2019)
identify the “right to be disconnected” as an attempt to
limit the negative effects of teleworking by assuring ad-
equate rest periods and addressing work-life conflict and
well-being issues.
4. In fact, the regulation of the right to disconnect included in article 18.1 of Law 10/2021, July 9, on telework includes an improvement by
expressly referring to the employer’s obligation aspect of the right to digitally disconnect (as concluded in previous work Ginès i Fabrellas
et al., 2021, 177).
In the context of the potential increase in telework and
flexible work arrangements post-pandemic, both Euro-
found (2020a, 2020d) and the European Commission
(2020) have advocated in favour of the right to digitally
disconnect as a working time policy measure to better
define the line between work and life, reduce work-related
stress and other psychosocial risks and, essentially, con-
tribute to employee’s well-being.
Nevertheless, as mentioned above, for the right to digitally
disconnect to be effective and adequate in counterbalanc-
ing the negative effects of technology and flexible work
arrangements, it must be conceived as an employers’
health and safety obligation. The specific regulation of
the right to digitally disconnect - adopted in the collective
bargaining agreement or by the employer - must adopt
measures that focus on the sending end of the commu-
nication, prohibiting communications outside office hours
or establishing an automatic warning system or even
a blocking system on communications sent after hours.
In this sense, it is interesting to highlight the Collective
agreement of banks and financial institutions 2020-2023
in the Spanish legal system, which includes a list of good
practices regarding the right to digitally disconnect focus-
ing on the sending end of the communication.
Final remarks
Technology and flexible work arrangements produce
simultaneous positive and negative impacts on employ-
ees’ well-being. While technology and flexibility improve
well-being by favouring a more adequate work-life bal-
ance, reducing role conflicts and stress, they also produce
stress, and work-family conflict due to intensification of
work, overlap between work and life, constant connectivi-
ty, and permanent availability.
In the digital age, achieving an adequate balance between
technology and flexibility is essential to guarantee em-
ployee’s well-being. And in this context, aligned with other
health and safety measures, working time policies become
essential in the digital age, as they can free employees
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from the perception or expectation of having to compen-
sate flexibility by working longer hours, intensifying work,
being constantly connected and available.
The legal analysis of working time policies, recently recog-
nized at a European level, reveals that they have the poten-
tial to contribute to employees’ well-being by limiting the
negative effects of technology and flexibility. Working time
policies such as working time registry systems, limitations
on “on-call” or “stand-by” time and the right to digitally
disconnect act as health and safety measures by ensuring
that maximum working times, minimum rest periods and
adequate work-life balances are respected. At the same
time, they allow for the positive effects of technology and
flexibility as they are not incompatible with flexible work
arrangements nor autonomy and sovereignty in managing
working time. Indeed, the legal configuration of working
time policies analysed in this paper have the capacity to
limit the negative effects of technology and flexibility on
employees’ well-being identified by the literature, while
allowing for the positive ones.
Nevertheless, to do so, they must be adequately con-
ceived and regulated. In this sense, working time registry
systems, limitations on “on-call” or “stand-by” time and
the right to digitally disconnect must be conceived as
merely instrumental rights that aim to guarantee the
right to minimum rests periods and maximum working
time. If working time registry systems are wrongly identi-
fied with rigid and fixed schedules, they will not limit the
negative effects of technology and flexibility on employ-
ees’ well-being and, furthermore, will exclude the positive
ones altogether. Similarly, the right to digitally disconnect,
despite its common name, cannot be conceived as purely
an employee right, but rather as an employers’ health and
safety obligation, requiring employers to focus on the
sending end of the communications.
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About the author
Anna Ginès i Fabrellas
anna.gines@esade.edu
Universitat Ramon Llull (Esade Law School)
Associate Professor of Labour Law at Universitat Ramon Llull, Esade and Director of the Institute for
Labour Studies. She holds a bachelor’s in law (2006) and in Economics (2008) and a PhD Law (2011)
from Pompeu Fabra University. Currently, her research focuses on platform work and the impact of
technology and algorithms in the labour relationship. She is the leading investigator of the H2020
project EQUAL4EUROPE and the project LABORAlgorithm funded by the Spanish Ministry of Science
and Innovation. Among her most recent publications highlight the book Platform work. New forms of
precarious work published in Spanish by Thomson Reuters Aranzadi.
