Read our first article on the subject here : Labour Deal shapes right to disconnect for employees as of 1 January 2023
Who is in scope?
Employers with 20 or more employees are obliged to introduce a policy on the right to disconnect on company level.
Self-employed persons or service providers are excluded in the count to reach 20 employees. Since no explicit reference was made to the rules on social elections, it could be argued that temporary agency workers are not included in te count.
The policy on the right to disconnect should contain the following pillars:
- an overview of the practical modalities for the application of the right to be unavailable outside the working hours (= the general framework);
- guidelines for using digital tools in such a way to safeguard rest periods, holidays and to ensure no infringement in the private and family life of the employee (= the content of the policy); and
- Training and awareness campaigns for employees on the conscious use of digital tools and the risks associated with excessive connection (= how to reach the objective).
Provided that the legal provisions do not further specify the content of the policy, this is left to the companies. The following examples can be put forward:
- an automatic “out of office” response via e-mail whenever an e-mail is sent outside the working hours;
- the possibility of adjusting the accessibility settings and turning off notifications on smartphone, laptop, etc.;
- a back-up arrangement during holiday periods;
- the right of the employee to remain disconnected from e-mail, computer or phone after the working hours;
- drafting a generic guide on how to make use of digital tools; or
- organizing training sessions on reasonable and balanced use of digital tools.
Service providers will of course not be entitled to a right to disconnect provided that the law explicitly refers to employees.
Since the employer can determine the practical modalities for the application, some special, more flexible working regimes are to be excluded from the scope of the right to disconnect. Furthermore, it is assumed that exceptional situations (such as events or urgent assignments) may require to weaken the right to disconnect.
Persons holding a management position, or a position of trust are not subject to provisions on working time. Therefore, the right to disconnect can hardly be applied to this category.
How to implement it?
The employer is obliged to have a written policy in place. Various options exist as to where to integrate the policy.
The employer may draft a collective bargaining agreement (“CBA”) on company level containing the minimum requirements for the disconnection policy. However, whenever a CBA on sectoral level (“Paritair Comité” / “Commission Paritaire”) would be agreed, the employer is not required anymore on company level to make its own policy. The CBA must be filed at the registry of the General Directorate of Collective Labour Relations.
In those cases where a CBA is not drafted on company or sectoral level, the employer has the possibility to make changes to its work regulations (“arbeidsreglement” / “règlement de travail”) on the basis of the law of the 8th of April 1965.
If the employer has a Works Council, it will be responsible for adopting the internal work regulations and amendments. The amended work regulations enter into force 15 days after their approval by the Work Council. Lacking an approval within the Works Council, the draft text will be subject to a mediation procedure processed by the Social Inspection. If this mediation fails, the competent Joint Committee will decide.
If there is no Works Council present, the employer prepares the amendment to the work regulations and informs the employees of the draft by posting the text in a clearly visible and accessible place. The employees have 15 days to submit any comments in the corresponding register of comments. Afterwards, the employer notifies the draft amendment with the register of comments to the regional office of the Social Law Inspectorate. In case comments were made, similar mediation as above will be initiated. If this mediation fails, the competent Joint Committee will informed. If no comments have been made, the amendment will come into force 15 days after its posting.
Although the right to disconnect policy is meant to be obligatory for employers with more than 20 employees, the law does not prescribe a priori any explicit sanctions when an employer does not draft one or when they are not acting in compliance with the policy.
Yet, when the policy is part of a sectoral CBA, declared Joint Committee-wide, the employer is obliged to comply with the provisions and if not so, may face criminal sanctions based on the Social Criminal Code. If a CBA on company-level is breached by the employer, it is enforceable through civil proceedings which seek for compensation of the suffered damage, initiated by the representative employee organization. Moreover, it could be argued that the rights for employees are, in principle, incorporated in the employment contract.
All companies employing 20 or more employees must draft a policy on the right to disconnect. To this end, the work regulations should be amended or a collective bargaining agreement should be deposited at 1 April 2023 at the latest.
Do not hesitate to contact our Employment & Benefits team, we are happy to assist you!