On 28 September 2021, the Luxembourg Minister of Labour filed a draft law n°7890 (hereafter the “Draft Law”) with the Luxembourg Parliament (Chambre des Députés) aimed at introducing into the Luxembourg Labour Code the obligation for each company to define precisely the rules governing the right to disconnect.
Background
To date, a right to disconnect is not expressly addressed in the Luxembourg legislation, although many provisions of the Labour Code already provide safeguards (e.g. the rules protecting employees in terms of working hours, the general obligation of the employer to ensure the safety and health of all employees, etc.).
Moreover, the Court of Appeal recognised the right of an employee (in that case, a restaurant manager) to disconnect during a paid leave period in a decision dated 2 May 2019.
Finally, in a recent opinion, the Luxembourg Economic and Social Council (hereafter “ESC”) recommended to put in place mechanisms encouraging compliance with the right to disconnect and its implementation within companies.
The draft law essentially incorporates into the Labour Code the provisions suggested by the ESC.
Obligation to set up a scheme ensuring compliance with the right to disconnect outside working hours
The draft law provides for the introduction of two new Articles into the Labour Code (Articles L.312-9 and L.312-10) and addressing the right to disconnect.
More particularly, the draft law provides that where employees use digital tools for work purposes, a scheme ensuring compliance with the right to disconnect outside working hours must be set up (Article L.312-9).
The regime must in particular set out:
- the practical arrangements and technical measures for disconnecting from digital devices;
- awareness and training measures; and
- compensation arrangements in the event of exceptional derogations to the right to disconnect.
The scheme must be adapted to the specific situation of the company or sector, and be set up by way of a collective bargaining agreement or a subordinate agreement.
In the absence of a collective bargaining agreement or a subordinate agreement, the specific scheme is to be defined at company level, in compliance with the relevant legal requirements in terms of information and consultation of the staff delegation, if any. Thus:
- in companies with less than 150 employees, the staff delegation should be informed and consulted on the introduction or modification of a scheme ensuring respect for the right to disconnect outside working hours;
- in companies with at least 150 employees, there must be a mutual agreement between the employer and the staff delegation on the introduction or modification of said scheme.
Any breach of the obligation to implement a right to disconnect scheme would be liable to an administrative fine of between EUR 251 and EUR 25,000 imposed by the Director of the Labour and Mines Inspectorate (Article L.312-10).
Entry into force
With regard to the new Article L.312-9 of the Labour Code, the draft law does not provide for a specific date of entry into force. In the absence of specific provisions, Article L.312-9 will come into force according to the classical rules applicable in Luxembourg, i.e. four days after the publication of the law in the Official Gazette of the Grand Duchy of Luxembourg.
However, the draft law provides for a delayed entry into force of Article L.312-10 regarding the sanctions applicable in the event of infringement to the obligation to implement a right to disconnect scheme.
Article L.312-10 would enter into force one year after the date of publication of the law in the Official Gazette of the Grand Duchy of Luxembourg. For companies covered by a collective bargaining agreement or a subordinate agreement, Article L.312-10 would enter into force three years after the date of publication of the law in the Official Gazette.
Conclusion
The introduction of a right to disconnect will be welcome, at a time when employees' rights in terms of working hours can easily be undermined by the exponential use of telework. In any case, it is certain that this right to disconnect will have to be applied in the same way for employees teleworking as for employees working at the premises of a company. Indeed, the new telework agreement which came into force on 2 February 2021 specifies that any provision relating to the right to disconnect applicable to a “classic” worker shall also apply to a teleworker.
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