Digital disconnection policy: the art. 88 LOPDGDD document almost nobody has

Contents

• What is the right to digital disconnection?
• Who does it apply to and what does the law ask for?
• What does the policy have to contain?
• What risk do you run if you don't have it?
• How Tranquilia generates it
• Frequently asked questions
• Official sources

What is the right to digital disconnection?

It is every worker's right not to be required, once their working day is over, to keep an eye on their work phone or email. Art. 88 of the LOPDGDD recognises it "in order to guarantee respect for their rest time, leave and holidays, as well as their personal and family privacy".

It does not mean that nobody may ever write outside working hours; it means the company has to respect rest time and must not penalise someone who, quite rightly, does not reply until the next day.

Who does it apply to and what does the law ask for?

To every company, with no headcount threshold. Art. 88.2 LOPDGDD requires the employer to draw up an internal policy addressed to workers and managers, defining the ways in which the right to disconnection is exercised and the training and awareness actions on reasonable use of the tools.

That policy is drawn up after first hearing the workers' representatives where they exist. Art. 20 bis of the Estatuto de los Trabajadores (Spain's Workers' Statute) refers to this same protection.

What does the policy have to contain?

A useful digital disconnection policy sets out:

1. Express recognition of the whole workforce's right to disconnection.
2. The ways it is exercised: in which time bands no reply is expected, how genuine emergencies are handled.
3. Rules for remote working and flexible hours, where the boundary blurs more.
4. Training and awareness actions on reasonable use of email and messaging.
5. The guarantee of no reprisals against anyone who exercises the right.

What risk do you run if you don't have it?

Not drawing up the disconnection policy means breaching an employment obligation, and it may be classified as an infringement in the social order which the Inspección de Trabajo y Seguridad Social (Spain's labour and social security inspectorate) monitors. On top of that, in disputes about working time or rest, the absence of a policy counts against the company.

We do not give an exact figure because it depends on the case, but it is a low-cost obligation to prepare and one that many SMEs are not aware of: that is precisely why it is worth having it, rather than discovering it in the middle of a dispute.

How Tranquilia generates it

Tranquilia prepares the digital disconnection policy adapted to the way you work (on site, remote or mixed), with the ways of exercising the right and the awareness measures already set out, ready for you to communicate to your staff. If you are a gestoría (a firm that handles other businesses' administrative paperwork), you generate it for each client company.

Frequently asked questions

Does a small company need a disconnection policy?

Yes. Art. 88 LOPDGDD sets no minimum headcount: any company with workers has to draw up its internal digital disconnection policy, however small it is.

Does it mean I can't write to an employee outside working hours?

It is not an absolute ban on communicating. It is the worker's right not to have to deal with work outside their working hours and not to be penalised for it. Genuine emergencies can be provided for in the policy itself.

Does it have to be negotiated with the workers?

The law asks for it to be drawn up after first hearing the workers' representatives where they exist. Even where there is no representation, the policy must be communicated to the whole workforce so that they know their right and how to exercise it.

Official sources

• BOE — Ley Orgánica 3/2018 (LOPDGDD), article 88.
• BOE — Estatuto de los Trabajadores (RDL 2/2015), article 20 bis.
• BOE — RDL 5/2000 (LISOS).

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General information about the rules. It does not replace a lawyer's advice or an analysis of your specific case. If you have any doubts, check with your gestoría or with a legal professional.