Sleep Mode: the Right to Disconnect in Europe and in Portugal

In 2021, Portugal made it illegal for employees to send emails after working hours. This is what the Right to Disconnect means for companies and employees.

Photo by Nicholas Santoianni on Unsplash

Are you working far more than forty hours a week? Do you stay close to your phone even on weekends and holidays? Or travel to exotic places for a “workcation”, laptop in hand? 

With the rise of remote work, 24/7 workdays and soaring job pressures have become the norm. But changes are brewing to stop after-hours contact with employees and promote healthy work/life balance. In some countries, such as Portugal and France, new laws require employers to refrain from late-night emails, weekend instant messages, and Teams meeting while on vacation. This is what you need to know about the Right to Disconnect – and how it can affect your business.

What is the Right to Disconnect and why is it important?

The 'right to disconnect' refers to a worker's right to be able to disconnect from work and refrain from engaging in work-related communication, such as emails and other messages, during non-work hours and holidays. This is not a new concept - twenty years ago, contacting an employee outside working hours was exceptional (unless in the case of an emergency) and even more so during weekends or holidays.

But today, many managers routinely contact employees by e-mail or by phone after work. Tech companies are among the most likely to require workers to be available at all times – after all, tech never sleeps; having websites run 24/7 means there is always someone ‘on call’. Some contracts go as far as obliging employees to be available after work. Being “always on” is associated with higher productivity and is considered a necessary condition for career advancement. For this reason, some consent to taking on the burden of onerous work schedules that invade their private lives. The Right to Disconnect protects workers from being expected to be always available and to prevent professional matters from encroaching on workers' personal time. This includes the ability to turn off work-related notifications on personal devices outside of their normal work hours or on vacations. It also means companies cannot require employees to respond to work-related emails, calls, or messages outside of work hours. 

With growing concerns over the state of mental health of millions of workers, it is no wonder that so much attention is given to laws such as the Right to Disconnect. A 2021 study reported that nearly half of remote employees were working past midnight. Another study of over 36,200 tech workers found that two in five employees want to quit because of excessive stress, exhaustion and a broken work-life balance. 

The Right to Disconnect allows employees to have a healthy work-life balance. This can lead to improved mental health and decreased stress levels. The Right to Disconnect can help to prevent burnout - and particularly thorny issues for both employees and employers. Although the World Health Organization defines burnout as a result of "chronic workplace stress that has not been successfully managed" it does not recognize burnout as a medical condition. But it can cause – or be caused by – mental health issues like depression and anxiety.

Even once an employee quits, companies continue to suffer the negative consequences of burnout: burnout can compromise talent acquisition if negative employee feedback damages the company's reputation.

For companies, the Right to Disconnect can also help to improve employee morale, retention, and productivity. More than half (51%) of tech workers feel as though they are achieving less than they should, while a third of the tech workforce feels inefficient at their job – pointing to high levels of self-inefficacy amongst IT professionals, including IT leaders.

The Right to Disconnect: State of the European Union and Portugal

The Right to Disconnect has been enshrined in law in several countries, including France, Portugal, Italy, and Spain. France was the EU pioneer in legally recognizing the right to disconnect. As early as 2013, a national cross-sectoral agreement on the quality of life at work encouraged businesses to avoid any intrusion into employees' private lives by defining periods when their electronic communication devices could remain switched off. This right was made law in 2016.

Ireland – where over 20% of people have remote jobs, one of the highest shares in the continent - introduced a new code of practice which sets the right of an employee not to perform work outside normal working hours. It also protects workers from being penalised for refusing to attend to work matters outside of normal hours and the duty to respect another person’s right to disconnect.

Source: Social Europe 

In the United States, the single most overworked developed nation, there is no federal law guaranteeing the right to disconnect, but some states, including California, have passed laws prohibiting employers from requiring workers to check work-related electronic communication outside of work hours. 

In Portugal, one of the best countries in the world for remote workers and digital nomads, the Right to Disconnect is being implemented in several ways. One is through labour laws. Since 2021, companies can’t attempt to contact their staff outside working hours. Bosses are also forbidden from using digital software to track teleworkers. Fines for companies breaking the law go up to almost €10,000 for each infringement.
Another way is through collective bargaining agreements that allow workers to negotiate for better work-life balance. And finally, some companies are voluntarily adopting policies to limit after-hours work email and curb electronic communications. 

It sounds like a workers’ paradise, but there is a catch. 

Across Europe, labour inspections have plummeted – in Portugal more than anywhere else. So it remains to be seen whether such policies can realistically be enforced. And there are plenty of other challenges before the Right to Disconnect becomes a reality.

The challenges of implementing the Right to Disconnect

There are several challenges that both employees and companies face when implementing the right to disconnect. 

For employees, establishing boundaries can be hard. Separating between work and home life may lead many to feel guilty or anxious about disconnecting from work. FOMO - Fear Of Missing Out – can be a strong motivator to stay connected to work, even outside of normal working hours. Critics argue it is not realistic to expect employees to be able to disconnect from work and that the Right to Disconnect would ultimately lead to more work-related stress, not less. 

In other words, it can be hard to break away from an “always-on” that has become the new normal. In an increasingly competitive job market, some employees may even feel that they cannot afford to disconnect from work for fear of losing their job. 

Employers face their own particular set of challenges, such as establishing policies that strike the right balance between respecting employees' Right to Disconnect and ensuring that work gets done. Crucially, it requires a cultural change within organizations– a recent survey found that nearly 70% of workers reported their employer contacts them outside of normal work hours at least once a week. Upwards of 90% of employees typically answer these after-hour messages.

As with any shift, monitoring compliance is critical. Once policies are in place, companies need to ensure that employees are complying with them. This can be a challenge, particularly if employees are working remotely.

BRIDGE IN, compliant working contracts and time-off policy in Portugal

Solution? Spend time drafting a policy that suits your needs and be clear about how this impacts the contract of employment. If bespoke arrangements are in place, these should be clearly communicated, and employers should reserve the right to review and revisit arrangements on a regular basis.

To do so, it is essential to rely on expert guidance. BRIDGE IN is your trusted partner to compliantly employ teams in Portugal without the need to establish a local legal entity. Our Employer of Record service in Portugal is designed for tech and tech-enabled companies that are looking to hire great tech in a cost-effective way while giving their employees the benefits of a working contract.  

We are experts in local labour regulations, including the Right to Disconnect, and taking care of back-office payroll, insurance, benefits, and taxes on your behalf. BRIDGE IN can act as your interim country manager, taking bureaucracy off your shoulders while you focus on growing your business. Get in touch.