Legislation can be supportive when social partners play a central role.

Digital technologies make it possible to work at any time and from anywhere, with resulting advantages and disadvantages such as "constant availability", which can lead to a blurring of the boundaries between people's working and private lives and bring risks to their health and well-being.

Intense discussions are being held about the need for a right of non-availability to counter this. In its resolution of January 2021, the European Parliament called on the EC to submit a legislative proposal that would guarantee the right of non-availability (see Report 1-2021).

The EC has assured that there will be adequate follow-up, most recently in its EU Strategic framework for Occupational Safety and Health 2021-2027. However, it initially sees the social partners as being responsible here. They should agree on common solutions to the challenges posed by teleworking, digitisation and the right to be unavailable, building on the social partners' framework agreement on digitisation.

Promotion of collective bargaining

Eurofound (European Foundation for the Improvement of Living and Working Conditions) has now carried out a study that used case studies to examine how the right of non-availability has been implemented and the effects on employees health and well-being as well as separating private and professional lives. The study also concluded that a legislative approach requiring action by the social partners could encourage their collective bargaining activity on this issue, but without restricting the practical implementation of the right of non-availability.

Experience gained in those countries that introduced such a system showed that the number of collective agreements regulating this issue at sectoral and company levels had increased during the drafting and after the relevant legislation was adopted.

With regard to implementations being based solely on the activities of the social partners, it should be borne in mind that their strength and traditional industrial relations are not guaranteed to the same extent in all countries. In these cases, legislation could help to ensure compliance with minimum standards.

Change in corporate culture

At corporate level, it appears that both employers and employees believe that implementing the right of non-availability has contributed to a change in corporate culture and to the realisation that the expansion of digital, flexible working should not go hand-in-hand with the expectation of constant availability.

However, with regard to implementation, 'soft' approaches, such as raising awareness of the risks of constant availability and regular reminders that messages need not be answered outside working hours, would be preferred to 'hard' approaches in the form of interrupting work-related communications during specific periods.

Conclusion

Research into the impact of teleworking on working hours, work/life balance and employees health and well-being suggests the need for improvements in enforcing the existing legislation.

The impact of the relevant EU directives and the European social partners' framework agreement on digitisation would need to be assessed to determine whether they are sufficient to meet the challenges. 

Regardless of whether provisions are laid down in legislation or the social partner agreement, indicators for monitoring and evaluating the implementation of the right of non-availability and helping to identify any need for revision should also be introduced. Consideration should also be given to the factors that contribute to the "perceived" need for constant availability, such as workload, lack of training or working processes that can lead to overloading.