On 13 June 2023, the Luxembourg Parliament (Chambre des Députés) adopted the law amending the Labour Code with a view to introducing a provision on the right to disconnect (the “Law”).
Background
Before the adoption of the Law, a right to disconnect was not expressly addressed in the Luxembourg legislation, although many provisions of the Labour Code already provided 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 Luxembourg 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.
The Luxembourg Economic and Social Council (“ESC”) also recommended to put in place mechanisms encouraging compliance with the right to disconnect and its implementation within companies.
The 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 Law provides for the introduction of a new Section 8 “Respect for the right to disconnect” under Book 3 “Protection, security and safety of employees”, Title 1 “Safety at work”, Chapter 2 “Obligations of employers” of the Labour Code. Two new Articles are added under this new Section 8, Articles L.312-9 and L.312-10.
Article L.312-9 of the Labour Code 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.
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.
Article L.312-10 provides that any breach of the obligation to implement a right to disconnect scheme is liable to an administrative fine of between EUR 251 and EUR 25,000 imposed by the Director of the Labour and Mines Inspectorate. The amount of the fine will be assessed on a case-by-case basis, and will depend on the circumstances and seriousness of the breach, as well as on the behaviour of the perpetrator. An injunction to comply with the legal requirements may be issued before a fine is imposed on the employer.
Entry into force
With regard to new Article L.312-9 of the Labour Code, the 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, on 04 July 2023.
However, the 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 will enter into force three years after the date of publication of the Law in the Official Gazette, i.e. on 30 June 2026 which gives sufficient time to companies to implement a right to disconnect scheme in collaboration with the staff delegation, if any.
Conclusion
The introduction of a right to disconnect into the Labour Code is welcome and necessary, at a time when employees' rights in terms of working hours can easily be undermined by the exponential use of telework. In any case, this right to disconnect must 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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