Adding the right to disconnect to the Labour Code: opinion of the Economic and Social Council

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Date:
04 May 2021

Newsflash

By:
Dorothée David

The Economic and Social Council (Conseil économique et social - CES) issued an opinion on the right to disconnect on 30 April 2021.

In this opinion, the CES is recommending the addition of a new article L. 312-9 to the Labour Code on “Respect for the right to disconnect”. This article would cover the following provisions:

  • Obligation to define a right to disconnect scheme: when employees use digital devices for their work, a scheme should be defined at company or sector level, making sure that the right to disconnect outside working hours is respected; 
  • Implementation of the right to disconnect scheme: the scheme could be implemented by way of a collective bargaining agreement or a subordinate agreement. Otherwise, the right to disconnect scheme should be implemented once the staff delegation have been informed and consulted or by mutual agreement with them, in companies with at least 150 employees. If there is no staff delegation, the employer should define the right to disconnect scheme and inform employees about it.
  • Content of the right to disconnect scheme: the scheme should be adapted to the specific situation of the company or sector, and should in particular define:
    • the practical arrangements and technical measures for disconnecting from digital devices,
    • awareness-raising and training measures,
    • compensation arrangements in the event of one-off exceptions from the right to disconnect. 
  • Sanctions: any breach of the obligation to implement a right to disconnect scheme would be liable to an administrative fine of between 251 and 25,000 Euros imposed by the Director of the ITM.

Furthermore, the CES points out that although the right to disconnect is not specifically mentioned in Luxembourg legislation at the moment, several other provisions in the Labour Code already provide safeguards when it comes to disconnecting from technology, including in particular:

  • the rights and obligations applicable to working time;
  • the rules applicable to health and safety at work, and in particular the employer’s general obligation to ensure the health and safety of all employees.