Right to disconnect: enjoy technology without compromising rights

[shukla7789]

Hyperconnectivity has taken over our days, leading to the need to regulate the duty not to disturb/abstain from contact by employers during their employees' rest periods. Find out what is known as the right to disconnect and how to apply it.

Law No. 83/2021, of December 6, was recently published, which, in addition to amending the Teleworking regime, established the employer's duty to refrain from contacting the employee during the rest period , except in situations of force majeure, under penalty of a serious administrative offense.

Faced with a complex reality, in which on the one hand there are more and more people who are always "connected", causing FOMO (Fear of Missing Out) syndrome to become widespread, and on the other hand legislation that limits contact between employers and employees, it is important to better understand the context in which this measure arises and the problem at hand.

The path between the first labor laws, the right to italy whatsapp number database and the duty to abstain from contact
Limiting working hours is a concern that has existed for a long time. The first labor laws were created precisely with the aim of reducing endless working hours, legitimizing the right to rest and physical and mental recovery of workers.

Over the years, the limitation of working hours also came to be accompanied by the need to share jobs[1], with the aim of promoting their more equitable distribution across the population.

Regarding these issues, the Constitution of the Portuguese Republic itself provides, in paragraph d) of paragraph 1 of article 59, that all workers have the right to "rest and leisure, to a maximum limit on the working day, to weekly rest and to periodic paid holidays”. This is also the case with article 24 of the Universal Declaration of Human Rights.

With the technological revolution, fueled by the widespread use of the internet, a new social concern has emerged – the right not to disconnect – which has led to the revision of labour legislation, establishing the duty (as a rule) to abstain from contact during rest periods. But why is this rule so important?

Hyperconnectivity, a benefit of the digital age or a threat to human rights?
Much has been said about the dangers of technology, particularly Artificial Intelligence and Human Rights, threat or opportunity . It is also true that the pandemic has made teleworking widespread and that many professionals need to equip themselves with the necessary technologies to be remotely connected to the organizations for which they provide services. However, it is essential to guarantee workers' rights in times of pandemic .

This context has thrown open the doors, which were already half-open, to continuous requests, often leaving little room for workers to enjoy their right to rest, creating an environment of fear caused by the need to always be connected and available. These fears are essentially threefold:

Fear of losing my job
There are many times when workers find it very difficult to switch off for fear of losing their jobs.

Career development and better salary conditions
There are other cases in which, even having time to rest, workers end up working “outside their hours”, to work more or present more results with a view to progressing more quickly or having access to better salary conditions.
Be "better seen" within the company/be more recognized
On the other hand, it is not uncommon for there to be an interpretation that a worker who is available to work at night or on weekends has a greater degree of commitment to the employer, demonstrating supreme commitment and loyalty.
Will higher availability mean better performance?
Given these interpretations of work, the right to disconnect is often neglected. Many professionals do everything they can to be contactable at all times, anywhere and at all times, always available for work[2], in the hope of being considered better professionals. Nothing could be more misleading, I would say, as this certainly has a negative impact on productivity, given that without real rest time, fatigue builds up and physical and mental availability decreases, leading to lower productivity and increasing the possibility of human error.

Regardless of the legislation that now regulates the duty to abstain from contact during rest periods, it is up to each of us to impose our own limits, and it is up to each employer to respect the working hours of each employee, without making this a factor for promotion or demotion. There is a social catastrophe emerging from this need to always be connected and we can all do something to avoid it.

FOMO, the social catastrophe that motivates the right to disconnect
It is a kind of silence that spreads without many noticing. We live in a connected society, from the youngest to the oldest, which presents psychosocial risks such as stress, anxiety and burnout . FOMO syndrome , an acronym for fear of missing out, is increasingly widespread, increasing social anxiety linked to exclusion.

In the context of employment relationships, this syndrome causes workers to choose to always remain connected due to the fear of missing out on an opportunity that could be taken advantage of by other, more available colleagues, or even for fear of being laid off.

All these insecurities lead to one path: there are professionals who force themselves to always be connected to the point where this constant connection becomes an obsession[3].

Panic of oblivion generates a new type of slavery
Although this phenomenon has only recently begun to be discussed more, FOMO syndrome has been studied and there are authors who draw attention to the fears reported by workers.

Teresa Moreira Coelho states in this regard that "(...) there is a certain panic about being forgotten, as they fear that the obligation to disconnect will lead to them becoming dispensable, which is associated with a certain fear of a bad reputation among colleagues since there are, unfortunately, workers who are convinced that the "best" worker is the one who is not "disconnected" but hyperconnected and committed to the company (...)[4]", which could be creating or reinforcing what would be "almost a new type of slavery (...), which is putting at risk one of the first rights enshrined in workers – the right to an effective rest between working days"[5].

Duty not to disturb or right to rest, two sides of the same coin
It is in this context of safeguarding human rights and safeguarding or reinstating the right to rest that the "duty not to disturb" arises, now enshrined in the Portuguese Labour Code, which is imposed on employers, in order to safeguard the conditions for physical and mental recovery through effective rest for their workers – the so-called right to rest.

Authors such as Leal Amado remind us that "(…) by not reserving any space for his self-availability, then [the worker] ceases to be the owner of any fraction of his time, giving up his freedom completely, becoming a servant and no longer a free being. In fact, the legal subordination that arises through the celebration of an employment contract, in which the worker gives up part of his freedom, must be recovered each day, when the worker finishes his working day”[6].

Although at the beginning of the discussion on this topic many authors spoke of the worker's right to disconnect, many evolved this concept into the formulation that ended up being adopted in the legislation now published - an employer's duty to refrain from contacting the worker and not to disturb him/her.

Disturb only in “force majeure situations”
Despite establishing this duty to refrain from contact, the legislation provides for some exceptions when it comes to "force majeure situations".

This is a concept that will have to be expanded upon by doctrine and jurisprudence, otherwise employers with less legal literacy will be left more unprotected, as they will have difficulty understanding, in a specific situation, whether or not they can call their employee, whether or not they can ask them to come to the company, whether or not they can send an email, send a message on Teams, Zoom or another platform, because they will not know whether or not they fall within this concept, these exceptions...

A case of force majeure will be one that, although preventable, could not be avoided, either in itself or in its consequences, and may be natural events or human actions.

However, it would be easier for employers and workers if the exceptions to this duty not to cause inconvenience were identified, specified and outlined, even if only by way of example, as is the case, for example, with overtime work.