Right To Digital Disconnection - Data Protection Law

Since 2018, the Data Protection Law LOPD includes a right to digital disconnection for the employees (article 88 of the LOPD), also known as digital detox. Under LOPD employees have the right not to be connected or available during rest times and holidays in order to ensure a proper work-life balance.

This right to digital disconnection has been subject to interpretation.

The majority opinion of labour law experts was that respect for this break meant that companies could not require workers to read and respond to emails. The Labour Inspection, however, goes further and sees the mere sending of digital communication punishable if there is no express instruction that there is no obligation to respond outside of the workday. As stated in a recent ruling.

Article 7.5 of the law of infractions of the social order establishes as a serious infraction “the transgression of the norms and legal or agreed limits in terms of working hours, night work, overtime, additional hours, breaks, vacations, permits, registration of hours and, in general, working time. ” For its part, 40.1.b) of the same rule sets a range for the penalty of between 626 and 6,250 euros.

If this infringement of the regulations is paired with a perceived fear for negative consequences with regards performance evaluation if employees do not respond outside working hours, the infraction will be considered to be very serious and punishable with fines from 6.251 a 187.000 euros.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.