Digital disconnection: legal considerations and risks for companies

The right to digital disconnection: current regulation

The right to digital disconnection in the workplace has been recognized and regulated in Spain since 2018, specifically in article 20 bis of the Workers Statute, article 88 of Spanish Act 3/2018, of December 5, on data protection and guarantee of digital rights, and article 18 of Act 10/2021, on remote work.

The purpose of this right is to protect occupational health and facilitate workers’ personal, family and work balance, avoiding computer fatigue and so-called technostress.

In practice, this translates into an obligation for all companies in Spain that provide their employees with technological tools to perform their duties to regulate the right to digital disconnection.

Specifically, companies must draw up an internal policy on digital disconnection, after consulting with the legal representatives of the workforce (if any), which defines:

• The ways in which the right to disconnect can be exercised, adapted to the characteristics of the company and the different groups of workers.
• Training and awareness-raising initiatives for employees on the reasonable use of technological tools to prevent digital fatigue.
• Specific provisions for remote workers or teleworkers.

As a minimum content, the policy must include the conditions and exceptions for disconnection, good practices, training on technostress and, where appropriate, the creation of supervision and monitoring mechanisms.

Some measures aimed at guaranteeing employees’ right to digital disconnection often restrict emails being sent or received and calls being made outside working hours, and prohibit meetings during rest periods, unnecessary or urgent contacts on weekends or holidays, or through private telephones, except in emergency situations.

Failure to comply with or serious breaches of the digital disconnection policy may result in administrative penalties (under the Labor Infringements and Sanctions Act), civil liability (damages).

Draft bill to reform maximum working hours

For its part, the draft bill on reducing the maximum length of the ordinary working day and the guarantee of working time registration and the right to disconnect, presented by the government in the lower house of the Spanish parliament on May 6 (see our post Reform of maximum working hours moves forward in Spain), aims to strengthen, among other issues, the right to digital disconnection, establishing it as an unwaiverable right, with the aim of guaranteeing its protection more effectively.

Specifically, the bill, the fate of which is still uncertain, recognizes workers’ right to refuse or stop responding to communications or requests outside working hours, as well as not to receive these communications from the company or person delegated by it through devices, tools, or digital media.

As well as placing employers under a duty to refrain from sending these communications, it specifies that workers that exercise this right cannot suffer negative consequences, reprisals, or less favorable treatment.

Recognition of the right in the courts

In the past year, there have been rulings clarifying the right to digital disconnection, including circumstances where exceptions or modifications might be allowed. This shows the growing prominence of this right.

One of the most active High Courts of Justice (“HCJ”) in defining the practical scope of this right is the HCJ of Galicia, which has several recent rulings on the matter, each concerning specific facts:

• In its Ruling No. 1744/2024, of April 11, it analyzes whether the obligation imposed on managers to control absenteeism, as part of the absence monitoring process and IT protocol, respects the right to digital disconnection. It concludes that “in no way is the right to digital disconnection violated by the fact that a worker on temporary incapacity leave receives a phone call to inquire about their health, as this does not imply that the worker must be connected to the company's software through computers, corporate mobile phones, etc., and they are not obliged to respond to WhatsApp messages, emails, video calls, or any other type of digital communication related to the work to be performed.”
• Ruling No. 1407/2024, of March 19, reaches a similar conclusion, considering that the right to digital disconnection is not violated with respect to contacts made during vacations or medical leave to request formal vacation, in compliance with the internal protocol, as there is no imposition or urgency.
• Analyzing a different case, in its Ruling No. 1158/2024, of March 4 (confirmed by Supreme Court Order 11.03.2025, Rec. 3317/2024), the court declared that the right to digital disconnection had been violated due to the unjustified sending of emails outside working hours, and ordered the company to pay damages of €300.
• In Ruling No. 2292/2025, dated April 25, the Galician court also considered the right to digital disconnection to have been infringed, along with a worker’s right to moral integrity, for having received communications from the company outside working hours and during the worker’s medical leave (resulting from anxiety disorders and mental illness), sentencing the company to pay compensation of €1,500.

For its part, Ruling No. 1039/2024, of December 23, from the HCJ of the Canary Islands (Santa Cruz de Tenerife), upheld the internal policy that provided for the location in the corporate cell phone of workers designated to cover scheduled, known, or unforeseen absences, which fell within the conventionally defined cases of force majeure or on-call duties, standby, prioritized availability, greater dedication, or similar circumstances.

In conclusion, both current legislation and recent judicial doctrine emphasize the need for companies to adopt effective and transparent measures to guarantee the right to digital disconnection, adapted to the particularities of each specific case, not only as a legal obligation, but also to prevent labor conflicts and promote a healthy work environment that respects the mental health and personal and family life of employees.