terça, 31 maio 2022

Companies’ duty of developing a digital disconnection policy, complying with the Organic Law 3/2018, of 5 December, on personal data protection

VolverThe Spanish Organic Law 3/2018, of 5 December, on personal data protection and guarantee of digital rights, entered into effect on 7 December 2018, transposing to Spanish Law the European Union Regulation 2016/679, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

As a consequence of applying the EU regulation on Data Protection and the Spanish Law 3/2018, an internal policy in companies is necessary to guarantee the “right to digital disconnection”, as provided in article 88 of the Law 3/2018, in particular. Hence, we go ahead analysing said article, addressing the rights and duties provided therein and their terms;

Art. 88 of the Organic Law 3/2018, of 5 December:

(i) Workers have the right to digital disconnection in order to guarantee, after legal or conventionally established working hours, their rest period, leaves and holidays, as well as their personal and family privacy.

(ii) The modalities of exercising the right to digital disconnection answer to the nature and purpose of the work relationship, and will be subject to the provisions of the collective bargaining or, otherwise, to the agreement between the company and the workers’ representative

(iii) The employer (prior hearing of legal representatives) will develop an internal policy for all staff (including senior managers), which will define the modalities of exercising the right to digital disconnection and the training and awareness-raising actions for the staff on the use of IT tools. Additionally, it states that the right to digital disconnection shall be preserved “in the scenarios of total or partial remote work.”

Therefore, according to said article, the main duty lies in paragraph (iii) and it is appropriate to identify the measures to be taken into account:

1- Duty of developing an internal policy,

2- Duty of prior hearing with the legal representatives after approving it,

3- Duty of aligning the contents to the provisions in the collective bargaining (or, otherwise, to the agreements between the company and representatives) on Digital disconnection.

Additionally, the rule provides that, while developing such a protocol, the companies must take into account “the nature and purpose of the work relationship”, adapting to special factors at work (company’s business area, IT media use for conducting work, types of employment/roles, greater or lesser degree of on-site and/or remote work, forms of conducting work, etc).

Notwithstanding the special factors in every case, it can be deducted from the rule that, generally speaking, these protocols must contain specific customs and practices applied to the companies’ staff that define clearly working and resting times, in order to guarantee the effectiveness of rest time as well as the exercise of their right to personal and family privacy, beyond the working hours.

Conventionally in such policies, the companies have been adopting measures such as: IT use limitation in rest time, leaves and holidays, non-obligation of answering calls, texts or emails after hours, obligation of including out-of-the-office notices, with referral to other available persons, advertising to convene meetings avoiding hours close to the end -of-day, etc.

It is worth noting that, even if regulations don’t include a specific penalty due to the lack of an internal protocol of Digital Disconnection, the case law deems that the infringement of the right to digital disconnection may fit in the violation of legal or agreed boundaries on working hours, holidays, leaves, etc., in the infringement related to respecting the worker’s privacy and dignity and, even, in infringements of the occupational risks prevention regulation.

Lastly, we should highlight that the regulation does not provide for the right to digital disconnection to be expressly governed by the applicable Collective bargaining agreement (it is only provided for the development of protocols) and therefore it may be or may not be included in the applicable Collective bargaining agreement of the company.

As we have seen, the Organic Law 3/2018 establishes the companies’ duty of developing specific protocols, which will be applied in the company. At Labour Law department of Belzuz Abogados, S.L.P. Labour Law Department, as lawyers with expertise in labour law, we will keep monitoring and analysing the issues that, with the new duties’ regime, arise from the digital disconnection.

Ana Escandell LucasAna Escandell Lucas 

Departamento Direito Laboral | Madrid (Espanha)

 

Belzuz Abogados SLP

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