FRIEDRICH-EBERT-STIFTUNG LEGISLATING A RIGHT TO DISCONNECT 3 LEGAL FRAMEWORK IN OTHER COUNTRIES 3.1 EXISTING LAWS FRANCE The right to disconnect as a legal right first emerged in France, where in 2016 a law(the so-called El Khomri law) was enacted, introducing a right to disconnect as an issue subject to mandatory negotiation in companies with more than 50 employees. The law built upon a 2001 French Supreme Court ruling that“the employee is under no obligation either to accept working from home or to bring there his files and working tools" ¹³, and a 2004 decision by the same court that an employee cannot be reprimanded for being unreachable outside working hours ¹⁴. regulating the use of digital tools, with a view to ensuring compliance with regulations governing rest and leave periods, privacy and family life.” It further noted that if the social partners cannot reach an agreement,“an employer may draw up a charter, following consultations with the Works Council or, if such does not exist, with staff representatives. Such charter shall define the terms for exercising the right to disconnect while also providing for the implementation of training and awareness-raising measures relating to the reasonable use of digital tools. Such measures shall target employees, supervisors and management.” The law also followed a National Inter-professional Agreement signed by the social partners on 19 June 2013 called“Towards a policy to improve the quality of life at work” ¹⁵. This agreement included, under the heading of proper use technology and respect for workers' private lives, the notion of protecting workers'“time to disconnect” – something that had already been tested at a number of companies in France at the time. In the 2016 reform of the labour code, the French government thus included in the chapter“Adapting Labour Law to the Digital Age” a provision to amend the labour code and introduce a right to disconnect as a subject for mandatory negotiations between the social partners at the company level. By adding a new section 7, Article L2242-17 of the Labour Code stated the following:“The annual negotiations on equal opportunities between women and men and the quality of working life cover … The terms enabling employees to fully exercise their right to disconnect and the introduction by the company of schemes SPAIN Following the adoption of the French law, the Spanish government in 2017 began studying the possibility of enacting a right to disconnect in Spanish law as well. On 6 December 2018, the government adopted the new Data Protection Act, which transposed the European Union's(EU) 2016 General Data Protection Regulation(GDPR) into Spanish law, but which also introduced a new set of digital rights for both citizens and employees ¹⁶. Article 88 thus stipulates that workers in both the private and public sectors are to have a right to disconnect in order to ensure respect for their periods of rest, leave, and holidays, as well as for their personal and family privacy. The law does specify, however, that the right to disconnect must take into account the nature of the employment relationship in question, and that the right may be flexible or even inapplicable if the employment relationship does not allow it. 12 “Law on work, the modernisation of social dialogue, and the safeguarding of career paths”, aka. the“El Khomri Act”, Law 2016-1088 of 8 August 2016. The law entered into force on 1 January 2017. https://www.legifrance.gouv.fr/ affichTexte.do?cidTexte=JORFTEXT000032983213&categorieLien=id 13 Labour Chamber of the Cour de Cassation, 2 October 2001, No. 99-42.727. 14 Labour Chamber of the Cour de Cassation, 17 February 2004, No. 01-45.889. 15 Accord national interprofessionnel du 19 juin 2013"Qualité de vie au travail". https://www.journal-officiel.gouv.fr/publications/bocc/pdf/ 2013/0041/boc_20130041_0000_0011.pdf 16 Ley Orgánica 3/2018,“Protección de Datos Personales y garantía de los derechos digitales”, 5 December 2018. https://www.boe.es/eli/es/lo/2018/ 12/05/3#:~:text=Ley%20Org%C3%A1nica%203%2F2018%2C%20de,%C2% AB%20BOE%20%C2%BB%20n%C3%BAm. Like the French law, the Data Protection Act prescribes a central role for the social partners in negotiating the details of the right to disconnect. If there are no unions present, it is instead to be agreed upon between company and worker representatives. The employer is then to prepare an internal policy for all staff, including staff in managerial positions, outlining the proper exercise of the right to disconnect and ensuring that staff receive training on the reasonable use of technology to avoid the risks of digital fatigue. The law specifically notes that workers who work remotely or from their homes either occasionally or regularly may also exercise the right to disconnect. 6