Since 2018, workers in Spain have had a right to digital disconnection, ensuring that after hours their rest, personal life, and family privacy are respected. Nonetheless, court decisions have sometimes allowed practices that appear to curb this right. For example, the Madrid High Court of Justice recently approved a limitation on disconnection for employees of an audiovisual production company. The contract for these workers includes a usability bonus tied to weeks with up to 40 hours of work.
The ruling dated July 17, obtained by EL PERIÓDICO DE ESPAÑA from the Prensa Ibérica group, confirms the position announced in October 2022. Social Court 5 in Madrid rejected the CSI-CSIF union’s unsuccessful challenge demanding an unqualified right to disconnect for workers, except in cases of force majeure or exceptional circumstances. The court highlighted ongoing issues, such as failure to contact workers at times, including through personal phone numbers, especially during shift transitions, and times when workers felt pressure to remain reachable with less than 12 hours of advance notice, a pattern that has become common for those in service roles.
The case centers on employees of Telemadrid, employed through a well-known production company that handles regional television. Although the dispute was focused in Madrid, concerns touch 295 workers across 16 centers nationwide. At the Pozuelo de Alarcón headquarters in Madrid, 45 staff members were hired to perform duties that included an availability fee for extra hours.
CSIF initiated legal action after establishing that worker hours could be altered up to twelve hours in advance, and sometimes even less, between April and October of the previous year, on at least 59 occasions. Changes affected company phone numbers or email access. When workers objected, someone else was contacted instead, underscoring a pattern of pressure to adapt to shifting schedules.
can’t be normal
The issue drew the attention of the Labor Inspectorate. The company argued that exceptions to the twelve-hour rule should not become standard practice and that respect for digital disconnection should persist in contract terms. In discussions about digital disconnection, emphasis was placed on limits regarding the use of private devices. Workers were told they could use only company-provided mobile phones and corporate emails, not private devices.
According to the union, workers received an availability bonus when workdays extended to 35 hours per week, effectively requiring them to join the company or remain on duty. The plaintiffs argued that, unless there is force majeure or an extraordinary circumstance, any change should be communicated as the actual working day, rather than through unilateral adjustments.
However, both the trial court and the Supreme Court noted the small proportion of cases where schedule changes occurred with less than twelve hours’ notice. These events occurred in only 0.90 percent of services (6,627 instances over six months), which the courts argued does not establish a systematic practice by the company.
In the opinion of the board, including judges Aurora de la Cueva Aleu, Begoña García, and Ana María Orellana, the additional compensation tied to availability reflects an arrangement in which workers voluntarily accept shifts and may be required to stay on call beyond their usual hours. The decision states that the supplement compensates for both the existence of additional shifts and the extra time devoted to the job, without creating any additional rights of perception beyond the stated terms.
The ruling adds that if the company has a legitimate warrant to call workers for shift changes twelve hours in advance, there may be occasions when workers must respond during breaks. If a worker accepts an availability fee, that worker must be available. The judgment notes that some workers may prefer not to be available, an option recognized but not always honored in practice.
Held since 2018
On the national level, the right to digital disconnection is rooted in Article 88 of the Organic Law for the Protection of Personal Data and the Guarantee of Digital Rights, approved in 2018. This law sets out that public servants and employees can disconnect digitally to safeguard rest, leave, and holidays outside legal or customary working hours, as well as personal and family privacy.
Recent jurisprudence has addressed specific scenarios, such as messages sent via WhatsApp. Last November, the Galician Supreme Court found that the mere use of WhatsApp does not automatically infringe the right to digital disconnection, noting that no sanctions or necessary immediate responses were required in the presented case. A previous decision from the Asturias High Court of Justice, in March 2022, held that if an employee voluntarily provided a WhatsApp contact to the company and it was regularly used for business purposes, the right to disconnect was not automatically violated.
The court emphasized that workers should not be obliged to respond to messages during breaks or outside working hours, unless there is a clear presence or protection advantage. It also distinguished this situation from routine emails or messages sent outside working hours, which could be seen as workplace harassment in certain contexts.
There is no unified Supreme Court precedent in this area, aside from a September 2015 decision about the lawfulness of a clause in a contract that required a worker to give a mobile number or email to the company. In that case, the Supreme Court acknowledged that some data may be shared with the employer, but objected to broad obligations in the employment contract, indicating that consent is not always fully voluntary in such matters in the age of advancing telematics across sectors.