Employers will have to put in place specific arrangements to protect employees’ right to disconnect, or face financial penalties.
Disclaimer: To provide employers with quick and practical information about how to comply with their obligations between now and the entry into force of the Law (as defined below), this newsflash has been prepared on the basis of Bill of law n°7890 as debated and voted on in Parliament on 13 June 2023. Readers should be aware that the final version of the Law has not been made official at the time of release of this publication and that the Law as published may contain additional subtleties to be taken into account later. A new law with a major impact on employers is about to come into force: the law on the right to disconnect (the "Law"). Its source, Bill of law 7890_, was exempted from a second constitutional vote on 20 June 2023. Below is an overview of what employers can expect.
1. What is the right to disconnect?
The right to disconnect (or the right to switch off) is a concept that aims to protect employees by guaranteeing them the right not to be constantly available or contacted outside their working hours. Although the right to disconnect can be seen as deriving indirectly from the provisions of the Labour Code (regarding working hours and the right to health and safety), the Law was drawn up to regularise the situation and ensure that employees who use digital devices for work purposes enjoy a better work-life balance.
2. What should employers expect?
These are the key points of the upcoming Law:
- Creation of a new right for employees: by introducing a right to disconnect, the Law explicitly recognises the right of employees who use digital devices for work purposes not to be contacted outside working hours, particularly via e-mail, telephone call or workplace messaging systems. The stated aim is to enable staff to take full advantage of their free time without constant work-related interruptions.
- Employers' obligations: employers will be required to implement tangible measures to ensure that the right to disconnect is respected, including practical and technical arrangements, raising awareness and staff training, and possible compensation arrangements (in the event of exceptional derogations from the right to disconnect). This can include developing clear internal policies on availability outside working hours, raising employees' awareness of good time management practices, and using technology to delay or limit business communications outside working hours (such as blocking access or leaving digital devices at business premises). Employers will be free to select the mechanisms best suited to their specific circumstances and challenges to achieve the objective set by the Law.
- Collective agreements: the right to disconnect will be added to the list of topics that must be covered in collective agreement negotiations.
- Staff delegation: the staff delegation must be involved in implementing the right to disconnect. The degree of involvement will vary, depending on the number of employees (information and consultation or co-decision).
- Penalties and remedies: the Law imposes penalties for failure to comply with the right to disconnect. Employers who fail to introduce a system guaranteeing the right to disconnect will be liable for fines of between EUR 251 and EUR 25,000. Employees will also be able to seek redress in the event of a breach of their rights and, if necessary, make a whistleblowing report (see our Newsflash of 16 May 2023 on this topic_).
3. Implementation of the right to disconnect
The right to disconnect regime may be defined by collective agreement or related sub-agreement. Failing that, it will be defined at the level of the business, with due regard for the powers of the staff delegation, if any. The Law will come into force on the fourth day following its publication in the Luxembourg Official Journal. However, penalties will not apply for three years (starting from the date of publication in the Official Journal), to enable employers to bring themselves into line with the Law, and, in particular, to conduct any collective negotiations required.
Author: Raphaëlle Carpentier
