Who is in scope?
Employers with 20 or more employees are obliged to work out the modalities of a right to disconnect on company level. It could even be argued that this obligation also applies to a Technical Operating Unit (“Technische Bedrijfseenheid" / "Unité Technique d’Exploitation") having more than 20 employees in its scope.
Consequently, self-employed persons or service providers are excluded in the count to reach 20 employees and are not granted a right to disconnect.
The Labour Deal is a minimal framework which employers at least need to implement in their policies, composed of three 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
- education and awareness campaigns for employees on the sound use of digital tools and the risks associated with over-connection (= how to reach the objective).
The Labour Deal does not further specify the content of the policy, but out of the framework it is possible to assume that a reflection would be made around the following topics:
- on overview of the expectations from both sides on what the policy can mean for the organization of work;
- agreeing upon exceptional situations under which the disconnection rules may be weakened;
- an automatic “out of office” response via e-mail whenever an e-mail is sent outside the working hours;
- 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.
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 internal 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 Work 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.
The policy on the right to disconnect is not part of the mandatory provisions of the work regulations.
Although the right to disconnect policy is meant to be obligatory for employers with more than 20 employees, the bill does not prescribe a priori any explicit sanctions when an employer does not draft one or when they are not handling 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 before 1 January 2023. The deadline is tight, and promises to be challenging since it will also be part of a renewed discussion in many companies on the notion of flexible work in the context of “working from home” policies.
Do not hesitate to contact our Employment & Benefits team, we are happy to assist you!