Increasing digitalization and the diversification of IT tools for professional purposes are leading to hyper-connection among employees, gradually blurring the line between private and professional life. To protect employees, the new law introduces a right to disconnect outside working hours into the Labour Code. In the case of non-compliance with the new regime by the employer, the Director of the Inspectorate of Labour and Mines ("ITM") may impose administrative sanctions.
The bill No. 7890 introducing a right to disconnect in the Labour Code has been voted by the Chamber of Deputies on June 13, 2023. The law has been published on June 30, 2023 and entered into force on July 04, 2023 ("the Law").
The right to disconnect was not established in Luxembourg legislation until today. However, some provisions of the Labour Code already required compliance with protective rules on employee working hours, in particular through the general obligation to ensure the health and safety of employees provided by articles L.312-1 and following of the Labour Code.
The Law now includes a new section on the protection of employees´ health and safety, by introducing a fully-fledged regime to protect employees' right to disconnect outside their working hours (new articles L.312-9 and L.310-10 of the Labour Code).
While the gradual introduction of professional digital tools in the execution of the employment contract has many advantages (responsiveness, flexibility, etc.), it can become problematic for the employee if there is no disconnection.
In order to prevent potential excesses, the Law now provides for specific measures to be introduced.
Companies where employees use digital tools for professional purposes will be obliged to set up a specific protection system adapted to the particular situation of the company or sector of activity. This specific system will be defined by collective bargaining agreements, or if there is no collective bargaining agreement, at the level of each company.
It must specify the technical and practical arrangements for disconnecting from digital tools, as well as awareness-raising and training measures for employees, and compensation arrangements in the event of exceptional derogations to this right to disconnect. This system could be implemented, for example, by drawing up a dedicated internal charter and setting up specific internal training on the subject, the company remaining free to develop its own measures to ensure that employees' right to disconnect is respected.
In companies with at least 150 employees, this system may only be introduced after information and consultation with the staff delegates, or by mutual agreement with them. In the absence of staff delegates, the employer must define the system and inform the employees concerned.
Companies infringing the provisions of the Law will be subject to an administrative fine of 251 to 25,000 euros imposed by the Director of the ITM (new article L.312-10 of the Labour Code).
The new sanctions introduced by the Law will enter into force only one year after publication of the Law in the Journal Officiel, and only three years after this date for companies bound by a collective bargaining agreement. This gives companies time to comply with the new obligations. Nevertheless, during this period of transition, employers will have to introduce the procedure relating to the right to disconnect and may be subject to liability before the labour courts if they fail to respect this new right.
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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.
