since 2018, Spanish workers have the right to a digital disconnection that guarantees it’s out-of-hours rest, personal and family privacy are respected, although justice confirms business practices that seem to limit this privilege. HE Madrid High Court of Justice, For example, it recently approved a limitation of disconnection for employees of an audiovisual production company, whose contract includes receiving an usability bonus linked to working hours reaching 40 hours per week.
The decision of 17 July, to which EL PERIÓDICO DE ESPAÑA from the Prensa Ibérica group has access, confirms what was announced in October 2022. Social Court 5 in Madrid In response to the unsuccessful appeal of the CSI-CSIF union demanding the right to disconnect workers “Except for force majeure or exceptional circumstances”. Not being able to contact them – sometimes even through their personal phone numbers – especially during shift changes. less than 12 hours in advancesomething that has become commonplace for those responsible for the service.
Plaintiffs work for Telemadrid through this award-winning company: register and direct for regional television. Although the conflict is in the center, there are a total of 295 workers in 16 centers across Spain. 45 people were recruited at the headquarters of Pozuelo de Alarcón (Madrid), they all charge extra availability fee.
CSIF took the matter to court after confirming that workers’ working hours were changed twelve hours in advance—sometimes before that time—between April and October last year. at least 59 times. Changes company phone or email Since there was no response even though it was an institution, a personal phone number was contacted and if the worker objected, someone else was called.
can’t be normal
The matter was brought to the attention of the Labor Inspectorate, and the company requested that exceptions to twelve hours should in no case become ordinary circumstances. Regarding the digital disconnection, attention was drawn when the workers signed the contract. withdrawal of consentThe company may only use mobile phones and corporate emails provided by the company, never private or private devices.
According to the union, all workers were given availability bonuses as workdays were extended to 35 hours per week. join your job or stay there except that day. In the plaintiffs’ view, this did not mean that, except in force majeure or exceptional circumstances, the situation should result in notification of any change other than the actual working day.
But both the trial court and now the Supreme Court overlook the importance of making the case less than twelve hours in advance. Occurred in only 0.90 percent of services (6,627 in total) took place in six months, thus eliminating the possibility of talking about a “company application” in this sense.
In the opinion of the Chamber composed of the Board Judges Aurora de la Cueva Aleu, Begoña García and Ana María OrellanaA non-compoundable salary supplement, a usability bonus rewards a worker for openly agreeing to work a particular shift, but also to participate in or stay on the job outside of that shift, when they need it. The service requires it.
“With this supplement it is understood that both the fact of existence itself, and more dedication and working days are paid, without any other right of perception,” the decision adds.
Like this, “If the company has a search warrant Workers are required to make shift changes twelve hours before performing a service; this means that sometimes they will have to do this during break times and If the worker receives an availability fee, he must be available”. A different issue that the sentence points to is that the worker prefers not to be available.
Held since 2018
At the state level, the right to digital disconnection, Article 88 of the Organic Law, approved in 2018 The Protection of Personal Data and the Guarantee of Digital Rights clearly states that public servants and employees will have the right to digital disconnect in order to ensure that their rest, leave and holidays are respected outside of legal or customary working hours. as well as personal and family privacy.
The jurisprudence has recently ruled on such matters as: sending a message via What’s up. Last November, Galician Supreme Court of Justice decided that use does not necessarily violate the right to disconnect digital. In the aforementioned decision, it was stated that no sanctions, reprimands, reminders or behaviors were detected that would require the worker to respond immediately to such communications in the concrete case.
A little earlier decision. Asturias High Court of Justice, In March 2022, it was decided that if an employee voluntarily gave his WhatsApp to the company and it was regularly used for business communication, his right to digital disconnect could not be said to be infringed.
Yes, he clearly stated that what should be dropped is: the worker has no obligation to respond to them, as long as no presence, protection or similar advantage is detected. It also distinguished this use from systematically sending emails or messages outside of working hours, which could even be considered workplace harassment.
not yet available Supreme’s jurisprudence in this context, with the exception of the September 2015 decision assessing the lawfulness of a contract clause, forced the worker to give his mobile number or email the company
In this case, the Supreme Court agreed that certain data “may be made available to the company”. current times of progressive telematics power in all fields“Although he objected to the inclusion of the said obligations in the employment contract, it is understood that his consent in this matter was not completely free and voluntary.