The Superior Court of Xustiza de Galicia (TSXG) has marked a before and after in the protection of the right to digital disconnection of workers in Spain. For the first time, a company has been convicted of sending electronic jobs to an employee who was on a medical leave.
The sentence is considered a pioneer because, although other countries such as France and Belgicaya have legislated on digital disconnection, Galician justice has taken another step by sanctioning not only the obligation not to respond, but also the company’s duty not to send communications outside working hours.
What happened? As detailed by the sentence, the affected worker was in a situation of temporary disability due to an “anxiety disorder”, apparently “motivated by emotional wear involved in the current situation of excess work, realization of overtime continuously and labor responsibility, which has led to the appearance of relational insecurity with respect to its environment.”
In this context of medical disability, the employee continued to receive electronic emails related to her work throughout the period of decline. The company recognized the facts, but argued that the emails to the complainant were part of a thread created above and whose content was aimed at other people of the team. In addition, he claimed that they were not asked for “an immediate response.”
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The TSXG got serious with disconnection. In its resolution, the Superior Court dismissed the company’s arguments and was overwhelming in its ruling. The magistrates considered that the company not only breached their duty to refrain from communicating with the worker during his temporary disability, but also attempted against his moral integrity.
According to the sentence, the right to digital disconnection “demands that communications from the company are not received outside the work time”, and warns that “that right is not fulfilled due to the fact that the working person does not have the duty to respond to the communications received outside the work time more or less immediately.”
That is, and here lies the importance of this resolution, that the right to digital disconnection does not only refer to the interpretation of the urgency of the communications received, but “carries with it an obligation by the employer, and of the dependent or linked persons, of abstention in the communications of labor order or linked to the provision of services outside the working time.”
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Vulnerability situation. The TSXG highlights the special importance of the right to digital disconnection when the worker is in a situation of temporary disability due to a psychic ailment. In the sentence, the Galician Court emphasizes that receiving emails in these circumstances “uneasy the receiver, and also reassessed it and undermined their dignity” and places the worker in a state of permanent availability incompatible with her right to recover without pressures.
The right to digital disconnection in Spanish law. The right to digital disconnection is included in article 88 of Organic Law 3/2018 and reinforced with the arrival of the so -called Distance Labor Law of 2021. According to the regulations, “all workers and public employees will have the right to digital disconnection in order to guarantee, outside the legal or conventionally established work time, respect for their rest time, permits and vacations, as well as their personal and family intimacy.”
This right allows workers not to answer mails, calls, video calls or any other digital communication outside working hours. The law does not differentiate between the size of the workforce or the public or private nature of the company, so the protection is universal for all employees in Spain. With the TSXG ruling, the prohibition is not limited to the fact of “not answering” but its interpretation is expanded to “not receive.”
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Symbolic condemnation, but pioneer. The process reached the TSXG as a result of a previous sentence in which, in addition to the violation of the right to digital disconnection of workers, compensation for violations of the right to honor and physical integrity were requested. In this case, the new resolution revokes these last two concepts because it has not been damaged physically or its honorability has been affected.
However, it imposes compensation of 1,500 euros “for damages” for violating the right to digital disconnection because the company “was not guaranteed” of this right and points out that “pretending that it is available at any time of its life, including temporary disability, prevents the free development of personality and hinders the exercise of the field of intimacy of personal life of personal life.”
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Imagine | Unsplash (Brian J. Tromp), Wikimedia Commons (CARONIO)
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The news
Sending an email to a low employee has cost 1,500 euros to a company: it doesn’t matter if you respond or not
It was originally posted in
WorldOfSoftware
By Rubén Andrés.
