The right to disconnect

The right to disconnect is the right according to which an employee does not have to carry out work-related activities or professional communications using digital tools, directly or indirectly, outside his or her working time: holidays, break times, public holidays, weekends, etc.

The law of 28 June 2023 requires companies whose employees use digital tools for professional purposes to implement mechanisms to ensure compliance with and practical implementation of the right to disconnect, with effect from 4 July 2023.

The Act also provides for administrative penalties to be imposed by the Director of the Inspection du Travail et des Mines (ITM).

The employer's obligations under the new law

Where employees use digital tools for professional purposes, a system ensuring respect for the right to disconnect, outside working hours, tailored to the specific situation of the company or sector must be defined at company or sector level.

This system must provide for :

• the practical arrangements and technical measures for disconnecting from digital tools ;
• awareness-raising and training measures;
• compensation arrangements in the event of exceptional derogations from the right to disconnect.

Examples of practical measures and awareness-raising :

The Economic and Social Council, in its opinion of 30 April 2021 (🔗ces.public.lu), gives some ideas for practical arrangements and raising awareness of disconnection:

"The company could, for example, draw up a charter or organise information sessions to raise employees' awareness of the importance of disconnection and guide them on the proper use of digital tools and emails. It could also decide to block access to the company server during certain daily and weekly time slots or ask employees to leave digital tools on the company premises when they leave [...].

With regard to [awareness-raising], and to cite the example of e-mails alone, the first step should be to emphasise the quality of the information transmitted and not the quantity:

• limiting the number of recipients to what is strictly necessary,
• a clear and precise subject line,
• short, legible message,
• limiting attachments to what is strictly necessary
• deletion of the history of e-mails exchanged if irrelevant".

Sanctions foreseen

If an employer whose employees use digital tools for professional purposes fails to put in place a system ensuring respect for the right to disconnect outside working hours, the employer will be liable to an administrative fine of between €251 and €25,000 imposed by the director of the ITM, who will set the amount taking into account the circumstances and seriousness of the breach, as well as the behaviour of the person responsible, after the breach has been observed by a member of the ITM.

The law provides for these penalties to come into force after a period of 3 years, i.e. from 4 July 2026.

The role of the delegate

The law provides for the right to disconnect to be introduced by a collective agreement or, failing that (if there is no collective agreement in the sector), by means of an internal regulation.

In this case, the specific arrangements are introduced and amended after informing and consulting the staff delegation for companies with fewer than 150 employees or by mutual agreement between the employer and the staff delegation in companies with at least 150 employees.

Are you a delegate? ALEBA's legal experts can help you introduce this right in your company! Don't hesitate to contact them to discuss your requirements: legal@aleba.lu.