The increasing digitization of the modern era and the fast-pacing rhythms of companies are forcing employees to be more and more connected to their professional phones or computers outside their working hours. This constant rising demand, however, blurs the border between private and professional life by making employees reachable by phone, e-mail or instant messages at all times. This phenomenon raises the question as to whether a right to disconnect and cut the continuous link to work should be recognised for employees. A certain number of countries have chosen to clarify this right to disconnect through legislative initiatives.
In Luxembourg, the Labour Code does not expressly provide a right to disconnect for an employee. However, many provisions of the Labour Code have already set up safeguards, including in particular the rules applicable to working time and to health and safety at work.
In its decision dated 2 May 2019, the Luxembourg Court of Appeal formally recognised for the first time the employee's right to disconnect during paid leave. In that case, the Court of Appeal declared the termination of the employment contract with immediate effect for gross misconduct by the employee as being abusive. It has been considered that the employee's aggressive attitude refusing to assist the employer upon an urgent request while on paid leave could not justify such termination with immediate effect, the employee being entitled to a right to disconnect.
Alongside the above, a number of collective bargaining agreements ("CBA") have already adopted the principle of a right to disconnect, such as the CBA for employees of the University of Luxembourg concluded in September 2018, or more recently, the CBA for Luxembourg Post employees signed in December 2020, the CBA for employees of aid and care and the social sector signed in February 2021, as well as both CBAs for the bank and the insurance sectors agreed in June 2021.
In addition, the new collective agreement on telework, which was signed on 20 October 2020 between the social partners and was declared a general obligation by Grand Ducal Regulation as of 22 January 2021, provides that teleworking employees benefit from the same disconnection provisions as those applicable to the other employees.
Finally, on 30 April 2021 the Luxembourg Economic and Social Council (Conseil économique et social, "CES") issued an opinion on the right to disconnect. In this opinion, the CES suggests supplementing the legal provisions on occupational safety and health with a new Section 8 "Respect for the right to disconnect" and a new Article L. 312-9 of the Labour Code providing that, when employees use digital devices for their work, a dedicated scheme should be set up at company or sector level, ensuring that the right to disconnect outside of working hours is respected. This scheme should be adapted to the specific situation of the company or sector and should in particular set out practical arrangements and technical measures for disconnecting from digital devices, as well as specific compensation in the event of exceptions from the right to disconnect, and implementation of awareness and training measures regarding the new scheme.
Prior information and consultation of the staff delegation will be requested to implement such a scheme. Co-decision is also being considered in companies with at least 150 employees.
Finally, the proposed article introduces sanctions in the event of any breach of the obligations to implement a right for the employees to disconnect and in particular an administrative fine of between EUR 251 and 25,000 imposed by the Inspectorate of Mines and Labour ("ITM").
Further actions are expected by the Government in the coming months in its fight for the implementation of a legislative framework on the right for the employees to disconnect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
