Recognising the right to disconnect in Luxembourg

The right to disconnect after working hours without consequences from an employer has yet to be enshrined in law in Luxembourg. Shutterstock

The right to disconnect after working hours without consequences from an employer has yet to be enshrined in law in Luxembourg. Shutterstock

The right to disconnect after working hours without consequences from an employer has yet to be enshrined in law in Luxembourg. As teleworking tests the system, it's more important than ever that clear boundaries be established.

Since 1 January 2017, companies hiring over 50 people in France have been forced to outline the right to ignore calls and emails after working hours without repercussions. As teleworking during the pandemic blurs the lines between work and home, last year Luxembourg announced the first steps in this direction.

Legal vacuum

While, Luxembourg’s current labour code does not spell out the right to disconnect outside of working hours without facing consequences from employers, there are some safeguards. These include the general obligation to ensure the health and safety of all employees (Article L 312-1 of the Labour Code) and The Convention on the Legal Regime of Telework which says that departments must agree on a teleworking framework, especially when it comes to overtime.

The situation was tested in a May 2019 dismissal appeal, in which an employee took issue with his superior for sending him emails at night while on holiday. The employee was later dismissed for connected reasons. A court of first instance considered the dismissal justified. But a court of appeal judged the employee was entitled to the right to disconnect from work while on leave. “It was the first time that case law recognised this right to disconnect. So, it basically introduced the idea on a larger scale,” says lawyer and senior associate at Allen & Overy Nathaël Malanda.

High stakes

Overworking, whether because of an employee’s excessive diligence or an employer’s unrealistic expectations, can lead to low productivity, fatigue, mental health problems and high staff turnover. Since the legal precedent, employers also risk sanctions if they fail to ensure safeguards. Malanda said: “We do see an increased interest from employers. It was already the case before covid, and it's definitely the case, since covid, that they are addressing this topic, realising they have to protect themselves, and the employee from a situation where they would be available all the time and would endanger their health or be in a position to challenge the health and safety measures that the employer has.”

Nathaël Malanda, pictured, is a lawyer and senior associate at Allen & Overy. Photo: Allen & Overy

First movers

Malanda said that some Luxembourg-based firms have already introduced practices that enshrine this right or have begun reflecting on them. The pandemic has accelerated these reflections. The 2020 Quality of Work Index, published on Wednesday, found that last year 37% of people polled were at risk of burning out, and 39% experienced work-private life conflicts, compared to 35%  and 37% respectively in 2019.

The economic challenges of the pandemic also risk increasing pressure and workloads on individuals. “It has become even more important. We see a lot of employers and employees indicating that they are working more while remote working than when they're on site,” Malanda said.

Training and awareness

Finding the right balance won’t be easy, especially as some people prefer to work flexible hours and find it doesn’t impact their work-life balance. “I would say, the law in creating a right to disconnect could help but it won't be effective if people do not have the discipline,” Malanda said. Training will be key to ensuring any future right is protected, as will monitoring.

“You have some companies who actually have in their policy that you have to meet with the manager once a month to see all the work and the overtime that was done to see if the overtime was really necessary,” said Malanda.

Luxembourg’s draft law was expected to be tabled in the first three months of 2021. A labour ministry source told Delano the time frame has changed, though it “remains important and a bill of law will be voted. It became also quite clear during the last months that the necessity for such a bill of law goes far beyond the topic of the home office.”

Long road ahead

The source did not explain the reason for the delay but it could be related to the fact that the European Parliament last week called on the EU Commission to put forward legislation guaranteeing the right for workers to disconnect. EU commissioner for jobs and social rights, Nicolas Schmit (a Luxembourger) said at the time that it was essential to ensure “a healthy work-life balance and sound working conditions in the new digitised world.” It could, however, be some time before any regulation is enacted as MEPs passed a last-minute amendment calling for a three-year delay on legislative action.