A right to be unavailable

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 protected.

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 conditions.

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 time.

Background

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.

Next steps

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 proposal.