The readiness to provide work has already occupied us in our previous article (: 3/2020). We referred there to the forms of readiness to work that do not have a legal basis but are defined by case law (ie: actual, simple and call readiness). We pointed out the difference that is observed between the Greek case law and the case law of the ECJ in terms of defining the concept of simple readiness; consequently: in terms of the working time. Finally, we mentioned the risk of interfering with the employee’s private life due to the use of technology. As the traditional form of teleworking is increasingly being replaced, these issues are proving to be important and relevant. The rest time that the employee is entitled to, legally and morally, but also their right to disconnect – as a means of ensuring their rest time, are the issues that will occupy us in this article.
Call readiness and digital technology
The continuous availability / readiness of the employee for work, by utilizing / using digital technology, could be equated with call readiness (one of the forms of readiness). A readiness that, in practice, is achieved with the use of the employee’s laptop, tablet and even smartphone.
The employee is, through technology, continuously (on a theoretical, only, level?) at the disposal of their employer. As we acknowledged in our article mentioned in the introduction, the employee “… can, and is no longer unusual, undertake and perform a task that does not require their physical presence.” This was followed by repeated lockdowns and the need to adapt to new data. The emergence of telework as the main, in some cases, way of providing work, proved that the physical presence can easily, and to a greater extent, be replaced, than what we believed here in our country (: in the small “village” in the world).
During the gradual transition to pre-pandemic normalcy, we find that the provision of work with physical presence is increasingly being replaced by telework.
Our concerns at the time are becoming more and more relevant today: “Reading a professional e-mail could be considered equivalent to interfering with the employee’s private life.” The expansion of the use of digital technology at work and consequently, the increased potential for telecommuting, raises serious concerns. Concerns regarding, in particular, the application of the arrangements for working time limits – but most importantly: regarding the employee’s time of rest.
Call readiness and time of rest
Each 24-hour work period corresponds to a minimum rest period of 11, consecutive, hours (: Directive 2003/88-article 3).
Both the ECJ case law and the Greek case law exclude from working time (: therefore, they are included in rest time), the time when the employee is on call. Of course, provided that the employee was not ultimately called upon to work.
However, the means of digital technology provide the possibility of direct, but also instantaneous, communication between the employer and the employee. The latter is often called upon, (also) after working hours (and therefore during their rest time), to deal with matters relating to their work. Sometimes in minutes – maybe less. Often, a short e-mail or, respectively, a phone call is enough.
The major issue that arises, in this case, concerns whether the short-term, sometimes infinitesimal, employment interrupts the employee’s rest time. If we answer in the affirmative, a new (rest) period of duration of 11 (again) consecutive hours for the employee should start, after the interruption of their rest time.
Various views have been expressed on this issue. As far as we know, the issue has not yet been addressed by the ECJ, which could help to draw safer conclusions.
Among the other approaches, the (teleological) reduction of the scope of the provisions of Articles 3 and 5 of the Directive has been proposed (: daily and weekly, respectively, rest), for those cases where working hours outside working hours are too short. This view, however, is, quite rightly, strongly criticized. It is argued, in particular, that this interpretation would require an amendment of the Directive. Otherwise, the assumption of the provision of work for a short period of time, which does not interrupt the rest time, does not seem to be in line with the purpose of Articles 3 and 5 of the Directive (Zerdelis, European Labor Law, 2020, §7 / 42).
But we can go one step further: as the data has changed dramatically since this Directive entered into force, it proves necessary to re-approach its content.
The new labor law, the right to disconnect and readiness to provide telework
Does any short-term employment outside of working hours, through digital technology, in the end, interrupt the rest time? The answer is not easy.
However, the solution can be sought in the provisions of the new labor law (Law 4808/2021) in the case of telework and / or from its provisions-when telework is not provided.
Specifically, the new law provides for the right of disconnection for teleworkers (art. 67 §10 law 4808/2021). It stipulates in particular that: “The employee who teleworks has the right to disconnect, which is their right to abstain completely from the provision of work and in particular, not to communicate digitally and not to answer phone calls, e-mails or any form of overtime communication and during their legal leave. Any discrimination against an employee who teleworks is prohibited, because they exercised the right to disconnect…”
Also, in the same article, it is provided that: “In addition to the obligations under The Presidential Decree no. 156/1994 (A ‘102), within eight (8) days from the start of telework, the employer is obliged to inform the employee in any appropriate way, including by e-mail, the working conditions that differ due to teleworking, which include at least the following:
a) The right to disconnect of par. 10.
(e) Agreement for readiness to provide telework, its time limits and deadlines for the employee’s response.” (article 67 §5 a’ and e’ law 4808/2021).
Readiness to provide telework (as regulated by this law) should be compatible with work and rest time limits. The disclosure, in this context, of the working conditions by the employer, as required by law, should adequately (and contractually) define and structure the right of disconnection.
Telework not only entered our country’s labor relations violently but also (as we have repeatedly argued in a series of presentations, workshops and articles) “is here to stay”.
And it did.
The issues created by the new, at least for our country, specific form of work are many. And, not infrequently, serious and hard to solve. It is a given that not only the national but also the European legislator will be called upon, unfortunately a posteriori, to manage them.
Until then, we are called to manage them using the grid of tools provided by law.
Above all, however, it is necessary for each business that is to meet its needs through telework of their employees, to have a tailor-made employment contract entailing the working conditions regarding telework and readiness to provide it.
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (August 8th, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.
