A right to be unavailable
MEPs call for an EU directive.
SW – 01/2021
Teleworking and mobile working enable
employees to work from anywhere and at any time. However, what initially seems
promising also harbours risks for employees.
Opportunities and flexible working risks
Whilst teleworking and mobile working
enable commuting times to be reduced, greater working time autonomy and
improvement in the work / life balance on the one hand, they often lead to a
blurring of the boundaries between work and private life on the other.
Extending the working hours and intensifying the work itself are other risks
that can lead to high levels of stress and negative consequences regarding the
health and well-being of the employees.
The dangers of longer working hours and
shorter rest periods are well known and they were also discussed before the
coronavirus crisis. The European Foundation for the Improvement of Living and
Working Conditions concludes in a study on the subject that those, who regularly work from
home often exceed the maximum weekly working time of 48 hours that applies in
the EU. The crisis has brought the issue into sharper focus through
working from home.
EU directive required
The European Parliament adopted a resolution on the right of unavailability on 21st January
2021. It is a fundamental right that is an inseparable part of the new working
patterns evolving in the digital age. It should be seen as an important social
policy instrument at EU level to ensure that the rights of all employees are
MEPs are calling on the EC to set out the
minimum requirements for teleworking throughout the EU in a legal framework to
ensure that teleworking does not adversely affect employees’ employment
A directive that will ensure that the right
of unavailability can be effectively exercised, is under consideration. It
should apply to all employees working in private and public activity sectors,
including atypical workers, who use digital tools for their work.
MEPs have tabled a proposal for such a
directive in their resolution. This stipulates that employers must give their
employees the means to exercise their right to be unavailable. This includes
recording the relevant working hours in an objective and accessible manner and
giving employees the opportunity to obtain their working hour records at any
Various European laws regulate specific
aspects regarding the protecting of teleworking and mobile working employees.
For example, the Working Time Directive provides for a maximum weekly
working time of 48 hours, which includes overtime, daily and weekly rest
periods. Employers must record and monitor working times in accordance with the case law of the European Court of Justice. The Directive covering transparent and foreseeable working
conditions obliges employers to inform their employees about the essential
aspects of the employment relationship. This includes the work location and
working patterns. However, the existing European legal framework does not
explicitly provide for a right of unavailability.
The EC must now present a corresponding
legal act or explain why it will not comply with the European Parliament's
request. However, in the debate with MEPs on the 20th January 2021, Nicolas
Schmit, the Commissioner responsible for Jobs and Social Rights, reiterated the
crucial role of the social partners in this area and called on them to work together
proactively to find an appropriate solution for the benefit of employees and
businesses alike (see Report 9-2020 as well). The Commission is ready to support their