Article 20 BIS of the Workers’ Statute (Royal Legislative Decree 2/2015) establishes that workers have the right to privacy in the use of digital devices made available to them by the employer, to digital disconnection and to privacy from the use of video surveillance and geolocation devices under the terms established in the current legislation on the protection of personal data and guarantee of digital rights.

For its part, Organic Law 3/2018 of 5 December 2018 on the Protection of Personal Data and guarantee of digital rights, which came into force on 7 December 2018, transposing into Spanish law the European Union Regulation 2016/679 on the protection of individuals with regard to the processing of personal data and the free movement of such data, sets out in its article 88 the right to digital disconnection.

In particular, article 88 of Law 3/2018 establishes that;

a) Workers have the right to digital disconnection in order to guarantee, outside the legally or conventionally established working time, respect for their rest time, leave and holidays, as well as their personal and family privacy.

b) The modalities of exercising the right to digital disconnection shall be in accordance with the nature and purpose of the employment relationship, and shall be subject to the provisions of collective bargaining or, failing that, to the agreement between the company and the workers’ representatives.

c) The employer (after hearing the legal representatives) shall draw up an internal policy addressed to all staff (including management staff) defining the modalities of exercising the right to disconnection, and the training and awareness-raising actions for staff on the use of technological tools. In addition, it specifies that the right to digital disconnection will be preserved «in cases of total or partial remote work»

For its part, Article 18 of the Remote Working Law (Law 10/2021) establishes that remote workers, particularly teleworkers, have the right to digital disconnection outside their working hours under the terms established in Article 88 of Organic Law 3/2018, of 5 December.

The employer’s duty to guarantee the right to disconnection entails a limitation on the use of technological means of business communication and work during rest periods, as well as respect for the maximum duration of the working day and any limits and precautions regarding the working day set out in the applicable legal or conventional regulations.

Having established the legal terms of the right to digital disconnection, and beyond the necessary obligation of companies to have the corresponding «Digital Disconnection Policy», and the necessary participation of the workers’ legal representatives in the drafting of the same, it is necessary to inform of some relevant rulings of different High Courts of Justice regarding the right to digital disconnection that may help to understand the possible effects of non-compliance by companies.

For example, the tendency of the High Courts of Justice is that this right is not in itself considered a fundamental right, although it can affect the right to personal privacy, and in this way be connected with a possible violation of fundamental rights, as proposed in the judgments of the High Court of Justice of Asturias of 29 March 2022 and the High Court of Justice of Catalonia of 5 May 2023.

In this regard, and with regard to possible compensation for workers whose right to digital disconnection may be violated, the Judgment of the High Court of Justice of Galicia of 4 March 2024, although it establishes a symbolic compensation of 300 euros due to the small number of emails sent to the plaintiff outside working hours, does allow us to venture that this compensation for violation of the right to digital disconnection may be imposed by the Social Courts, with the amount varying depending on the damage or the judicial assessment of the extent of the violation.

On the other hand, not every communication outside working hours should be understood as a violation of the right to digital disconnection, as for this it is first necessary to analyse the contractual commitments (e.g. existence of a full availability agreement or not) as well as the scope of the possible intrusion. In this regard, we would also like to cite the Judgment of the High Court of Justice of Galicia of 23 November 2022, in which the fact of sending messages through a WhatsApp group, infrequent and not being obliged to answer them immediately, nor the existence of an order to remain connected to this application, was not declared a violation of the digital disconnection.

Therefore, as labour lawyers, from the of , we would firstly like to point out the possible existence of compensation in favour of workers for the violation of this right, although secondly we would like to warn that it will be necessary to evaluate each particular case the factual situation both for and against a possible violation of the right to digital disconnection, and obviously we recommend obtaining the appropriate legal advice.