A message from the boss at the last minute, a call during the holidays, or a request to respond on a day off. Work communications outside working hours are part of the routine for many workers, but Spanish legislation recognizes the right to disconnect in order to protect rest times and personal and family privacy.
This right is set out in Article 88 of Organic Law 3/2018, on the Protection of Personal Data and the guarantee of digital rights, and in Article 20 bis of the Workers’ Statute. The rule establishes that employees, both in the private and public sectors, may disconnect from digital devices outside the legally or conventionally established working time.
Protection extends to emails, calls, messaging applications such as WhatsApp, and any other tool used to communicate for professional reasons. However, there is an important difference between the company sending a message and requiring the worker to read it, answer it, or carry out a task during their rest time.
Am I required to answer a work WhatsApp outside my working hours?
As a general rule, no. Once the workday has ended, the worker is not required to keep an eye on the phone or to respond to communications from their superiors. They also should not suffer retaliation, sanctions, or any negative employment consequences for exercising their right to disconnect.
The key is that rest time must be effective. If the company requires answering messages, resolving incidents, or carrying out tasks outside the established schedule, it may be encroaching on that period and creating working time that must be analyzed in accordance with labor regulations.
However, the right to disconnect does not mean that any communication outside working hours is prohibited. An informative message that does not require an immediate response does not necessarily equate to a violation. What matters is whether the company requires the employee to remain available or unjustifiably interrupts their rest.
What happens if I have an on-call duty or availability agreed upon?
There are situations in which the worker does have to attend to communications outside their usual hours. This is the case with on-call duties or availability periods that are provided for in the contract, the collective bargaining agreement, or an applicable agreement.
In these assumptions, the conditions depend on the agreed regime: when the employee must be reachable, what time they have to respond, and what type of interventions they must carry out. It is not the same to have an on-call duty with an obligation to attend to notices immediately as it is to have a more flexible availability.
In addition, the classification of those periods as working time or rest time depends on the specific conditions and on the degree of limitation they impose on the worker. The company cannot convert the entire rest period into a permanent availability period without complying with the applicable labor rules.
Outside the on-call duties and validly established availabilities, the worker retains the right not to respond.
The company must have a digital disconnection policy
The legislation is not limited to recognizing an individual right. Article 88 of Organic Law 3/2018 requires companies to draw up an internal policy aimed at the entire workforce, including executive positions, in which the methods for exercising digital disconnection are defined.
This policy must be prepared following consultation with the workers’ representatives and must include training and awareness-raising actions to promote the reasonable use of technological tools and to avoid computer fatigue.
It must also take into account the particularities of each activity and the working conditions for remote work or teleworking. Therefore, it is not enough to include a generic reference to the right to disconnect: the company must specify how it is applied in practice.
Workers can consult this protocol through Human Resources or through their legal representatives. If it does not exist, they can request information about the measures the company has established to guarantee rest.
Can a company be fined up to 7,500 euros?
The figures up to 7,500 euros that appear in some headlines should not be interpreted as an automatic fine for each WhatsApp sent outside working hours.
The Law on Infringements and Penalties in the Social Order (LISOS) provides for sanctions for companies that fail to comply with the rules on working hours, rest periods, and other time limit requirements for work. In the case of serious infringements, fines may reach 7,500 euros at their maximum level, depending on the applicable sanctioning regime.
But for an administrative sanction to exist, conduct constituting an infringement must be appreciated and the corresponding procedure must be processed. The classification and the amount depend on the facts, their severity, and the circumstances of the case. It is not enough to prove that a superior sent a message to an employee outside their working hours.
The situation may be more serious if, in addition to contacting the worker, the company requires them to respond, forces them to carry out tasks, or takes reprisals when they decide not to do so. In those cases, other labor breaches and members of staff’s rights may come into play.
How to claim if the company does not respect your right to disconnect
If communications outside working hours are repeated or the company demands availability during rest periods without there being a scheduled on-call duty, the worker can follow several steps:
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Keep evidence: keep messages, emails, calls, and screenshots with date and time. It is also useful to have the records of working hours and the documentation that proves the working schedule.
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Check the internal policy: request the digital disconnection protocol from Human Resources and verify what conditions it establishes.
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Go to workers’ representation: bring the situation to the attention of the works council or trade union delegates so they can intervene.
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File a complaint with the Labour Inspectorate: if the breach persists, the situation can be reported to the Labour Inspectorate and Social Security, which will investigate the facts and determine whether an infringement exists.
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Take the matter to court: when it is considered that labor rights have been violated, recourse may also be made to the social jurisdiction.
The complaint to the Inspectorate requires formally identifying who files it, but the identity of the complainant must be kept confidential from the company. There is also a mailbox for reporting possible irregularities without identifying oneself, although this does not amount to a formal complaint.
Therefore, the right to digital disconnection does not prevent a boss from sending a message outside working hours, but it does protect the worker from the obligation to be permanently available. The difference between a one-off communication and a requirement to respond or work during rest is what determines whether a breach may exist.