Right to Disconnect – A Comparison Between the Legal Frameworks of Austria and Slovenia
The increasing flexibility of the working world and the accompanying digitalization have sparked a debate in recent years that delves deep into labor law principles: the right to dis-connect. Employees today are often no longer bound to a fixed workplace or set working hours. Thanks to remote work, mobile working, and the availability of modern communication technologies, they are able to perform their work practically anywhere and at any time. However, this flexibility also has its pitfalls, particularly when it comes to distinguishing between working hours and leisure time.
Legal Framework in Austria
Unlike some other EU states, Austria does not have an explicitly enshrined legal right to disconnect. The Austrian Working Hours Act (Arbeitszeitgesetz, AZG) clearly regulates the framework for working hours and defines rest periods and maximum working hours that must be adhered to. During these rest periods, employees are not permitted to perform work and are generally not obligated to be reachable. The AZG only distinguishes between working time and leisure time, meaning that all activities falling under working time must be recorded and remunerated accordingly.
Flexible Working Hours and their Challenges
However, with the flexibilization of work models, such as flexitime, the line between working time and leisure time shifts. Employees can organize their working hours within certain parameters, which offers advantages for work-life balance but also brings new challenges. For instance, questions arise regarding reachability outside of core working hours. Do employees, for example, have to be reachable during flexitime? And what about reachability during rest periods?
In Austria, there is no general obligation to be available outside of the agreed working hours. There is also no implied obligation, that arises from regularly checking emails or taking calls outside of working hours, provided for by law. However, many employees still feel inclined to work outside their regular hours to meet employer demands or out of a sense of duty. This can lead to rest periods not being respected and unpaid overtime.
Smartphone Reachability and its Consequences
A particularly striking example of the blurring of work and leisure time is the phenomenon of smartphone reachability. Essentially, employees may be reachable around the clock via smartphone, whether through emails, phone calls, or messaging services. This raises the question of the extent to which such activities should be considered working time and how they should be recorded.
Replying to an email outside of regular working hours, even if it only takes a few minutes, could al-ready qualify as working time and should thus be documented and remunerated. The common practice of not treating such short interruptions as working time is not fully covered by the law, as the AZG does not stipulate minimum engagement times.
Implications for Overtime and Rest Periods
Reachability outside regular working hours also affects the allocation and remuneration of overtime. Even without an explicit order from the employer, overtime can be implicitly ar-ranged. For instance, responding to an urgent email received late at night could lead to disputes over overtime or potential night work premiums.
Moreover, maintaining rest periods remains a key labor law challenge. If employees interrupt their free time for work activities, this can delay the start of work the following day. In such cases, employers cannot impose penalties if employees adjust their working hours to respect rest periods and start work later, for example.
The European Context: A Look Across Borders
While Austria does not yet have statutory regulations on the right to disconnect, around eleven EU member states have already introduced such provisions. These regulations vary greatly. Some countries have strict rules obligating employers not to contact employees during their leisure time. Others restrict these obligations to specific situations, such as telework. Some states also impose sanctions, such as fines, for violations.
These European developments could be significant for Austria. The European Commission is planning to introduce a proposal in 2024 for EU-wide regulations to strengthen the right to disconnect and the rights of employees regarding telework. The goal is to support the digital transformation while ensuring appropriate working conditions, particularly in terms of mental health and a balanced work-life environment.
Legal Framework in Slovenia
In November 2023, Slovenia adopted an amendment to the Employment Relationship Act (ZDR-1), which aligns with Directive (EU) 2019/1152 of the European Parliament and Council from June 20, 2019, on transparent and predictable working conditions in the European Union, as well as Directive (EU) 2019/1158 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. These changes were incorporated into national labor law to enable employees to better balance their professional and personal lives.
Despite numerous amendments to the ZDR-1, the right to disconnect remains a focal point of discussions among employers, trade unions, and the Slovenian government.
The right to disconnect is regulated in the new Article 142.a of the ZDR-1, which stipulates that employers must grant employees the right to disconnect, ensuring that employees are not required to be available to the employer during rest periods or justified absences from work in accordance with the law, collective agreements, or general employer regulations.
Employers are required to take appropriate measures to implement the right to disconnect, and employees must be informed in the customary manner used by the employer. What constitutes appropriate measures is not specified in detail by the ZDR-1. It merely states that the measures employers must take should be established by sectoral collective agreements. If not defined at the sectoral level, these measures must be regulated through collective agreements at the company level or internal regulations within the individual company. Despite this provision, and although the deadline for implementing the measures is November 16, 2024, there are currently few sectoral collective agreements in Slovenia that provide for a right to disconnect. Therefore, employers are required to take internal measures to implement the right within companies by November 16, 2024.
The specific measures employers choose are at their discretion, as long as they are implemented in a timely manner. Potential measures range from technical actions (e.g., no emails after 6:00 PM, deactivating notifications on phones) to more general policies (e.g., employees are not obliged to respond to employer emails outside working hours). Based on current experience, employers are likely to opt for general policies rather than specific technical measures for the time being.
The introduction of the right to disconnect could be a step towards ensuring legal certainty for employees. However, it is evident that the regulation will only be effective in practice if employees are not punished or disadvantaged for exercising their right to disconnect. In case of a dispute, the burden of proof shifts: if the employee presents facts suggesting that the employer violated the right to disconnect, the employer must prove that the right was not violated.
The ZDR-1 stipulates fines ranging from EUR 1,500 to 4,000 if employers do not grant employees the right to disconnect or fail to appropriately regulate the measures for its implementation by November 16, 2024.
The Necessity and Justification of a Right to Disconnect
The necessity of an explicit right to disconnect in Austria is a subject of debate. On one hand, such a regulation could provide essential protection for employees, ensuring that leisure time is genuinely respected. On the other hand, overly strict regulation could limit the flexibility valued by both employers and employees and lead to overregulation.
A blanket right to disconnect with severe sanctions could cause issues in sectors where a swift response is necessary. It would be crucial to provide exceptions for emergencies or to prevent significant damage to a company. Additionally, whether such a right should apply equally across all professions is another consideration.
Christina Hödlmayr is a lawyer and partner at LeitnerLaw Rechtsanwälte. She advises companies on all aspects of employment law.
