The legislator has established the right to disconnect in the newly introduced Article 142.a of the Employment Relationships Act (“ZDR-1”), defining it as an employee’s right to be unavailable to the employer during rest periods and legitimate absences from work. Article 142.a ZDR-1 stipulates that the measures employers must implement to guarantee employees’ right to disconnect will primarily be determined through branch- or company-level collective agreements (taking into account the hierarchy of legal acts). If these measures are not regulated by a collective agreement and no union is organised within the employer’s organisation, the employer must present the proposed measures to the works council or shop steward for consultation before adopting them. Only in the absence of a works council or shop steward may the employer regulate these measures through a company byelaw or other appropriate means, while ensuring that employees are properly informed. Of course, the employer may always grant employees more rights than those provided, for example, in collective agreements.
What does an employee’s right to disconnect really mean? In our opinion, this right does not introduce anything particularly new. Its purpose, along with the associated measures, is to ensure that employees are not “disturbed” by their employer outside of working hours or expected to perform work-related tasks during their personal time. However, employees already have this right. It has long been established that an employer can assign work outside of regular working hours only if the relatively strict conditions set by law and secondary legislation for ordering overtime are satisfied. If an employee needed to be available to the employer for potential urgent tasks outside of working hours, that time was already treated as on-call time, for which employees were entitled to appropriate compensation. The right to disconnect does not negate an employer’s right to mandate overtime or on-call duty.
Thus, the right to disconnect is essentially a rebranded term reinforcing an existing right that employees have long held. The only new aspects are the requirement for employers to take appropriate measures to guarantee employees’ right to disconnect and the associated penalty provisions in Article 217.a of ZDR-1. Employers who fail to guarantee this right may be subject to fines ranging from EUR 1,500 to EUR 4,000. Additionally, new provisions stipulate that in disputes regarding infringements of this right, the burden of proof shifts to the employer. However, it is important to note that infringements of fundamental employee rights (which include breaches of working hours, the right to breaks, rest, annual leave, absences from work, payment for work, etc.) have already been subject to potential criminal prosecution under Article 196 of the Criminal Code.
Why did the legislator further regulate this set of rights and assign it a new name? The primary reason is that, in recent years – especially in the wake of the COVID-19 pandemic, the significant rise in remote work, and increasing globalisation – the line between working hours and personal time has become increasingly blurred. On the one hand, in many professions, there is often an “informal” expectation that employees monitor work-related correspondence and remain available to the employer throughout the day. Conversely, employees increasingly consider it normal to handle personal matters and conversations during working hours. These trends are, of course, more prevalent in so-called office jobs and less so in production and similar industries.
The new measures to protect the right to disconnect primarily focus on (re)educating both employees and employers about the importance of maintaining this distinction and respecting employees’ personal time. This is the only way employees can find both physical and mental rest. Employers are obligated to implement measures that minimise disruption to employees’ personal time, including disruption from other employees. They must also communicate to employees that they are not expected to be available to the employer outside of working hours (especially in terms of taking work-related calls, reading emails, etc.). Employees need to understand that disconnecting outside of working hours will not result in negative consequences and that they should not feel “guilty” for doing so.
In practice, the measures are categorised into soft and hard measures. Soft measures include additional training for employees on the right to disconnect and the negative effects of “constant connectivity.” In contrast, hard measures may include technical arrangements, such as restricting access to work files or disabling email transmission outside of working hours. There are no restrictions on how these measures can be selected or designed, so it is advisable that each employer carefully consider which measures are most suited for their company. Simultaneously, they should pinpoint where the most challenges occur in practice regarding compliance with the right to disconnect. Some examples of best practices can be found, for instance, on the Ministry of Labour, Family, Social Affairs, and Equal Opportunities website (Right to Disconnect | GOV.SI).
We agree with the legislator’s assessment that action was necessary due to the blurring of boundaries between personal time and working time. However, the question persists as to whether simply adding regulations for this right on paper will accomplish that goal and whether these rights will genuinely come to life (consider, for example, measures for promoting health in the workplace). The authors of this article humbly suggest that true disconnection – and the resulting improvements in mental and physical well-being – will be most effective when employees ditch all screens during their personal time, avoiding even personal use. Does this sound utopian?
