Just a matter of time? The ‘right to disconnect’

Achieving the right to disconnect is becoming a test case of the European Union’s commitment to social dialogue.

The pandemic ushered in a paradigm shift in the world of work, with what was once a pipe-dream becoming a reality. Remote working, hitherto the preserve of senior management, became a necessity for workers as lockdowns were introduced.

It is now a permanent feature of the landscape. But this is a cautionary tale for workers across the European Union, highlighted by the recent collapse of EU cross-sectoral social dialogue on the ‘right to disconnect’ (R2D).

Detrimental effect

With work never far away, are we witnessing the increasing commodification of the individual as labourer? This continuous process has gone unremarked and if anything has been glamorised by the ability of top managers to work from anywhere—even the golf course. Yet despite considerable technological innovation in a relatively short time, before the pandemic remote work (‘telework’) was still marginal. Office workers who had begun to query whether it was necessary to be together, in an office, to do their work got their answer during the lockdowns.

Against this backdrop, several questions came into sharp focus—not least the boundary between work and private life, increasingly blurred. Workers and their representatives began calling for R2D.

Being ‘always on’ can have a detrimental effect on workers’ fundamental rights and fair working conditions. The impact is particularly felt by those with caring responsibilities, who tend to be women. From the 2021 University College Dublin Working in Ireland Survey, we learnt that many workers, particularly women, experienced increased stress, were unable to disconnect from work and suffered diminished health and wellbeing. The negative psychosocial effects can include anxiety, depression, burnout, ‘technostress’ and sleep deprivation.

Introducing R2D for civil servants in Belgium in January 2022, Petra De Sutter, the minister for public administration, referred to stress and burnout resulting from workers’ inability to disconnect as the ‘real disease of today’. Other countries—France, Italy and Spain—had passed R2D legislation even before the pandemic. Since then, Greece, Luxembourg, Portugal and Slovakia have followed suit. Ireland has adopted a code of practice but this voluntarist approach is problematic with 14 per cent of employees reporting that their employer did not even acknowledge R2D.

EU response

While some countries have taken the R2D bull by the horns, it needs to be recognised that in EU member states ‘with low unionisation and attenuated collective bargaining’ national approaches ‘could entail an unequal playing-field’. Hence, an EU response is needed—through legislation, under articles 153 and 154 of the Treaty on the Functioning of the EU, or via social dialogue.

In January 2021, the European Parliament declared R2D ‘a fundamental right which is an inseparable part of the new working patterns in the new digital era’. The European Trade Union Confederation had since its 2019 congress favoured R2D ‘through legislative means’.

European employers’ organisations, such as BusinessEurope, however lobbied the parliament heavily not to call upon the European Commission to launch a legislative initiative on R2D. In the end, the parliament’s report did call for legislation on the ‘minimum requirements’ of remote work but not on R2D per se. It envisaged an enhanced role in this arena for the social partners.

At the sectoral level, in October 2022 the EU social partners covering central-government administrations—the Trade Unions’ National and European Administration Delegation (TUNED) and the European Public Administration Employers (EUPAE)—signed an agreement on digitalisation, with the participation of the commission. R2D is clearly spelt out in the agreement.

The sectoral social partners asked the commission to implement the agreement as legislation, in line with article 155.2 of the treaty. This would have improved the working conditions of nine million employees. The commission however put the idea on hold, waiting for the outcome of cross-sectoral negotiations.

Optimistic platitudes

In June 2022 meantime, the ETUC and BusinessEurope, as well as SGI Europe and SMEunited on the employers’ side, had signed ‘a historic deal’. Under the rubric of the European Social Partners Framework Agreement on Digitalisation, on R2D the European social partners ‘committed to being key actors to shape the future labour markets functioning’.

Optimistic platitudes followed, with the director general of BusinessEurope, Markus Beyrer, ascribing a ‘fundamental role’ to social dialogue and Esther Lynch of the ETUC saying it ‘shows that where there is a will, even the most difficult issues can be resolved by constructive negotiations’. In 2010, the cross-sectoral ETUC and BusinessEurope had however failed to reach agreement on amending the working-time directive. Would this be any different?

After over a year of negotiations, BusinessEurope’s newfound commitment to social dialogue began to wane and at the end of November it and SMEUnited, representing small and medium-sized enterprises, pulled the plug on any hope of an agreement. To add insult to injury, there is a distinct possibility that the sectoral agreement embracing R2D will fall by the wayside too.

Positive step

Can EU social dialogue be revived? Or are the commission, the European Court of Justice and BusinessEurope in cahoots against a social Europe?

The ETUC has been rather moderate in its response, calling on the commission to ‘to initiate swift legislative action’ on R2D. BusinessEurope is however against any ‘proposals for further legislation’. The European Public Service Union is disillusioned, dismissing a summit on social dialogue promised by the commission president, Ursula von der Leyen, in early 2024 as ‘a lame duck’.

Were it not for the sectoral social dialogue, there would not be much left in EU social dialogue. It is the EU sectoral social partners in transport, hairdressing, healthcare and central government that have struck agreements—although, as I have documented previously, the commission and the European Court of Justice have been reluctant to put any weight behind them.

The sectoral agreement on digitalisation and R2D can become legislation now. This would be a positive step forward for nine million workers and pave the way for other sectors of the economy. It would also demonstrate that the EU is genuinely supportive of social dialogue.