RIGHT TO DISCONNECT - Protecting the health of the staff implies the application of the right to disconnect in this time of health crisis!
Protecting the health of the staff implies the application of the right to disconnect in this time of health crisis!
The European Parliament's Employment and Social
Affairs Committee (EMPL) adopted on Tuesday 1 December (with 31 votes in
favour, 6 against and 18 abstentions) a report by Alex Agius Saliba calling
for a directive to enshrine at European level the right to disconnect. In this
respect, the rapporteur has indicated:
“We are in a situation where legislation was drafted
at a time when digitalisation was not as significant in our lives… The culture
of being “always on” and the growing expectation that workers should be
reachable at any time can negatively affect work-life balance, physical and
mental health, and well-being."
The
MEPs are therefore calling on the European Commission to present a European
directive on the right to disconnect. They are also emphasising that this right
should be deemed a fundamental right guaranteeing that workers may refrain from
performing work-related tasks and communicating electronically outside of
their working time without any negative implications. Furthermore, they are
calling on the European Commission to include the right to disconnect in its
future proposal on the health and safety at work strategy.
The right to disconnect: a fundamental
right to protect workers' health
The right to disconnect is two-fold:
1. The right to
health;
2. The right to work-life balance.
As an example, France has already included on 8 August
2016 this right in the labour code (Article L2242-17(7)1).
In Belgium, a law assigns companies the obligation to organize consultation
within the Committee for Prevention and Protection at Work (CPPT) on the right
to disconnect from work and the use of digital means of communication.
Article 153 of the Treaty on the Functioning of the
European Union (TFEU) provides for the EU to adopt directives which lay down
the minimum requirements for working conditions. Besides, Article 154 of
the TFEU establishes that the social partners must be consulted on the
possible initiatives which should be considered under Article 153 of the TFEU.
In addition, Article 7 of the Charter of Fundamental
Rights of the European Union relating to "Respect for private and
family life” states that “Everyone has the right to respect for his private
and family life, his home and his correspondence”. By “correspondence”, the
Court of Justice considers that any recording, interception or seizure of correspondence
addressed to a natural or legal person (in any form whatsoever, in particular
by wiretapping2) constitutes an interference with her, his or its
right to privacy. This protection extends to private correspondence (including
correspondence sent from the workplace3,
but also that having a professional or commercial nature3).
Article 31 of the Charter of Fundamental Rights of the
EU relating to "fair and just working conditions" states:
1. "Every
worker has the right to working conditions which respect his or her health,
safety and dignity";
2. “Every worker
has the right to limitation of maximum working hours, to daily and weekly rest
periods and to an annual period of paid leave.”
What about the application of this right
within the European Commission as employer and as guardian of the Treaties?
In this time of health crisis, the staff
compulsorily works from home. As a result, a new culture was born, that of “always-on”.
DG HR, a pilot who decided to get off the plane?
Unfortunately, we
regret realizing that DG HR still does not seem capable of ensuring the
essential consistency of the rules implemented by the many services of our
institution, thus allowing decisions at the most decentralized level with the
argument that they are supposed “know better the staff and any particular
situations".
In its documents regarding future
options for teleworking, the DG HR even envisages that each DG disposes in
its own way (sic!) the time slots and the applicable rules, what is quite
simply unacceptable!
This resignation of
DG HR from its role leads to diverging implementations of the instructions in
force, what is all the more unacceptable in the midst of a pandemic when it
comes to protecting the health of our colleagues..
Managers at the height of their
missions...
The vast majority of managers have been
exemplary in managing this crisis by showing empathy and the utmost concern for
their staff, fully recognizing the right to disconnect and thus building
a climate of trust that will remain forever acquired.
Others are not so much so…
Others, unfortunately, in the absence of actual proficiency at the
central level, feel authorized to interpret in a way that is as personal as it
is restrictive the instructions in force and thus unnecessarily worsen the already
difficult working conditions of those colleagues placed under their
responsibility
From “face-to-face at all costs" to
the obsession with "always-on" ...
It is thanks to the noticeably clear
positions taken by Commissioner Hahn, whom we would like to thank once again,
which prevented DG HR from
going without thinking to phase 2, as well as to precise and binding instructions on access to the
workplace, that the obsessive impulses for "face-to-face at all
costs" have been calmed.
However, this was not the case in terms
of the right to disconnect, to put an end to another obsession, that of "always-on".
R&D has received several complaints from
colleagues who are on the verge of medically proven burnout following a
hyper-connection and an over-solicitation within their services. No limits
whatsoever are imposed anymore. Our colleagues are forced to work at any time
of the day, until late in the evening, and even on weekends ... surpassing the
space-time border between work and private life. Hunted down by unscrupulous
little bosses who, having lost a part of their power of domination because of
this crisis and frustrated by the impossibility of forcing colleagues to return
to the office, do not hesitate to use a policy of control often bordering on the
obsessive ... even raising and letting linger doubts about the potential
consequences for the annual evaluation and promotion exercise.
The staff has not mutated into a hybrid species, half-human, half-robot!
The staff is by definition human and, as
such, needs time to rest, time to be together with their loved ones, leisure
time and, above all, sleep.
It is time for the Commission, as a
model and modern employer, to step in and take care of the health and
well-being of its staff by
taking clear action against these excesses while establishing well defined rules to be followed and
applied by all DGs,
safeguarding
minimum requirements concerning working conditions such as the respect for work-life balance, while taking into account the existing limitations of
daily working time..
The Joint Committee for Prevention and
Protection at Work (CPPT) has its say...
The CPPT is entitled to open a reflection on the right
to disconnect from work and the use of digital communication tools.
The R&D delegates,
closely with the staff representatives making part of that Committee, will not
fail to initiate discussions in the coming days.
Considering the above:
R&D joins
the demand of MEPs concerned with the health of EU workers.
R&D, as
the first Union in the European civil service, concerned with the health of the
Institution's staff, calls for the opening of negotiations on the right to
disconnect within the services of the European Commission, which should be an
integral part of the “Workplace and Wellbeing” pillar of the HR Strategy
Until the opening of these negotiations, R&D requests for:
· The obligation to ensure, for all staff, the respect
for the limitation of working time, holidays and rest periods, as well as the
respect for personal and family life;
· The setting-up of a regulatory system for the use of
digital tools;
· The respect of the fixed time slots already in force
during which the staff can be contacted: 9:30 a.m.-12: 00 p.m. and 3:00 p.m.-4:
30 p.m. (4:00 p.m. on Wednesday and Friday).
Cristiano Sebastiani,
Président
*****************************
1. French Labour Code. Art. L2242-17(7): The procedures for the full exercise by the employee
of his right to disconnect and the establishment by the company of devices to
regulate the use of digital tools, in order to ensure compliance with the
holidays and resting times as well as respect for private and family life. In the absence of
agreement, the employer draws up a charter, after consulting the social and
economic committee. This charter defines the procedures for exercising the
right to disconnect and provides for the implementation, for employees and
supervisory and management staff, of training and awareness actions on the
reasonable use of digital tools.
2. CJEU, January 17, 2019, Dzivev, aff. C-310/16 ECLI;
EU: C: 2019: 30, point 36
In addition, the interception of telecommunications
amounts to an interference with the right to a private life, enshrined in
Article 7 of the Charter. Such an interference may be allowed, in accordance
with Article 52(1) of the Charter, only if it is provided for by law and if,
while respecting the essence of that right and subject to the principle of
proportionality, it is necessary and genuinely meets objectives of general
interest recognised by the Union (see, to that effect, judgment of 17 December
2015, WebMindLicenses, C-419/14, EU:C:2015:832, paragraphs 71 and 73).
4. EDDH Court, judgment of 16 October 2007, Wieser
and Bicos c. Austria, req. N ° 74336/01 (arrêt
du 16 octobre 2007, Wieser et Bicos c. Autriche, req. N°74336/01)
Reference: Charter of Fundamental Rights of the European Union, 2nd edition, edited by F. Picod, C. Rizcallah and S. Van Drooghenbroeck Commentary article by article, Bruylant
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