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THE LEGAL NATURE AND THE PLACE OF THE RIGHT TO DISCONNECT IN EUROPEAN AND IN RUSSIAN LABOUR LAW
OLGA CHESALINA, Max Planck Institute for Social Law and Social Policy (Munich, Germany)
https://doi.org/10.17589/2309-8678-2021-9-3-36-59
The first part of this article is devoted to the legislative proposal for a Directive of the European Parliament and the Council on the right to disconnect that was adopted on 21 January 2021 in the European Parliament Resolution. In this part of the article the legal nature of the "right to disconnect," the personal and material scope of this right as well as the relationship to other (fundamental) labour rights and different aspects of the employment relationship are analysed. Furthermore, the author discloses the gaps of the legislative proposal and makes some suggestions concerning a new concept of working conditions. The second part of the article focuses on Russian labour law. During the process of reforming the legislation on remote work it was widely discussed whether "a right to disconnect"should be provided for in the Russian Labour Code. The author analyses problems with the organisation of working time concerning the application of a special working regime entitled "unregular working day" and the recording of working time. Furthermore, the perspectives of the application of self-protection of labour rights as a way to guarantee the right to disconnect are examined. The conclusion stresses which measures would be necessary for an effective execution and enforcement of the right to disconnect.
Keywords: right to disconnect; working conditions; working time; unregular working day; recording working time; self-protection of labour rights; labour rights.
Recommended citation: Olga Chesalina, The Legal Nature and the Place of the Right to Disconnect in European and in Russian Labour Law, 9(3) Russian Law Journal 36-59 (2021).
Table of Contents
Introduction
1. The Right to Disconnect in European Labour Law
1.1. The Character of the Right to Disconnect
1.1.1. Right or Duty?
1.1.2. Fundamental Right?
1.1.3. Human Right?
1.2. Personal Scope of the Right to Disconnect
1.3. Material Scope of the Right to Disconnect
1.3.1. Foundations
1.3.2. Relation Between Working Time and Rest Time
1.3.3. Intensity of Work
1.3.4. Connection Between Working Time and Wage
1.4. New Concept
2. Russian Labour Law
2.1. Remote Work and the Right to Disconnect
2.2. Measuring and Recording Working Time 2.2.1 Irregular Working Day
2.2.2. Recording of Working Time
2.3. Perspectives of the Application of Self-Protection of Labour Rights in Оrder to Guarantee the Right to Disconnect
Conclusion
Introduction
The factual distance from the employer's premises can, under certain circumstances, result in a more intensive digital approximation by means of technical tools' or apps in the case of workers on demand. Digitalisation, advanced communication technologies and different mobile work patterns have enabled permanent availability of workers and contributed to the formation of the "always on" corporate culture. The coronavirus crisis-induced working-from-home pattern has drastically prompted an "ever-connected" culture which has resulted in extended working hours and blurred boundaries between working and rest time. The European Parliament has been seeking to address this challenge. On 2' January 202', it adopted the European Parliament Resolution (hereinafter - Resolution) with recommendations to the Commission on the right to disconnect.2
Simge Kurt, Schutz und Verantwortung in der digitalen und globalen Arbeitswelt 283 (2020).
2 European Parliament resolution of 21 January 2021 with recommendations to the Commission on the right to disconnect (2019/2181(INL)), European Parliament (Jul. 1, 2021), available at https://www. europarl.europa.eu/doceo/document/TA-9-2021-0021_EN.html.
Legislation, practice and doctrine of the Member States do not use a unified approach to the notion, the level of regulation (legislation or collective agreements) and the scope of the application of the right to disconnect. There are no unified views on whether this is a real right (and if yes, whether it is a new right or a component of an already existing right)3 or, e.g., whether it also implies a duty on the part of employees to refrain from working and contacting colleagues outside of working time. The proposal of the Directive gives answers on some of these questions, while leaving many questions open.
The article is organised into two parts. in the first part of the article the legal nature of the "right to disconnect'; the personal and material scope of this right, as well as the relationship to other (fundamental) labour rights and different aspects of the employment relationship are analysed. Furthermore, the author discloses the gaps of the legislative proposal and makes some suggestions concerning a new concept of working conditions. The second part of the article focuses on Russian labour law. During the process of reforming the legislation on remote work it was widely discussed whether "a right to disconnect" should be provided for in the Russian Labour Code (hereinafter - LC RF). The author analyses problems with the organisation of working time concerning the application of a special working regime entitled "unregular working day" and the recording of working time. Furthermore, the perspectives of the application of self-protection of labour rights as a way to guarantee the right to disconnect are examined. The conclusion specifies which measures would be necessary for an effective execution and enforcement of the right to disconnect.
1. The Right to Disconnect in European Labour Law
1.1. The Character of the Right to Disconnect
1.1.1. Right or Duty?
The proposal of the Directive formulates the employees' right, but not a duty, to disconnect. At the same time, the Resolution itself stands in some contradiction to this attitude stipulating that "co-workers should refrain from contacting their colleagues outside the agreed working hours for work purposes" (point 20).
Article 3 of the Draft Directive formulates the right to disconnect as a positive, individual right whose addressee is the worker. This right is strengthened by the wording that "employers'must' take the necessary measures to provide workers with means to exercise this right." This wording argues in favour of the characteristic of this right as a subjective right. Erica Kovacs stresses that the strongest protection is guaranteed by expressing a prohibition (in relation to the employer), like the prohibition of forced labour.4 However, the proposal of the Directive refrains from formulating a prohibition for the employer to contact the employees.
3 Caterina Timellini, Disconnection: A Right in a Phase of Progressive Definition in New Forms of Employment: Current Problems and Future Challenges 119, 120 (Jerzy Wratny & Agata Ludera-Ruszel eds., 2020).
4 Erica Kovacs, The Legal Nature of Art. 30 CFREU - A Human Right, a Fundamental Right, a Right? in New Developments in Labour, Equality and Human Rights Law 11, 25-26 (Mario Vinkovic ed., 2015).
in Judy Fudge's opinion, labour rights cannot by classified as negative or positive obligations.5 Supporting and building on this opinion, we think that the right to disconnect includes a negative obligation of the employer - to refrain from connecting/ contacting a worker, as well as a positive obligation of him/her - to take the necessary measures to provide workers with the means to exercise the right to disconnect. The proposal of the Directive focuses rather on practical measures implementing the right to disconnect, which makes this right closer to a "procedural right."6
1.1.2. Fundamental Right?
The Resolution considers the right to disconnect as "fundamental." The iLO and the EU take different approaches as to which labour rights should be considered as fundamental. On the one side, the elimination of discrimination in respect of employment and occupation is one of four rights proclaimed as fundamental in the iLO '998 Declaration on Fundamental Principles and Rights at Work. On the other hand, Article 5 of the Draft Directive establishes protection against discrimination, less favourable treatment, dismissal and other adverse measures taken by employers. As, according to the Draft, employers have to take the necessary measures in order to ensure the right to disconnect, in our opinion, protection against discrimination is a consistent element of the right to disconnect. At the same time, iLO Declaration '998 as well as iLO Declaration 2008 do not mention the right to fair and healthy working conditions among the fundamental rights. The iLO Centenary Declaration for the Future of Work of 20'9 stipulates that "safe and healthy working conditions are fundamental to decent work." Section iii. B. of the iLO Declaration 20'9 allows for the conclusion that "working conditions" do not belong to the fundamental rights, since this subsection does not include "maximum limits on working time and safety and health at work" in "the fundamental rights."
EU law and in particular the Charter of Fundamental Rights of the European Union (hereinafter - Charter) take a broader approach to fundamental rights. The right to working conditions which respect the worker's health, safety and dignity (hereinafter -right to fair working conditions), laid down in Article 3'(2) of the Charter, is unquestionably the fundamental worker's right in the EU. Thomas Blanke stresses that the right to fair and just working conditions, laid down in Article 3'(2) of the Charter has
more than a general programmatic character. it transforms the general objective of labour law as a whole into a subjective right ... and elevates this subjective right to the status of a fundamental right.7
5 Judy Fudge, The New Discourse of Labour Rights: From Social to Fundamental Rights?, 29(1) Comp. Lab. L. & Pol'y J. 29, 46-47 (2007).
6 Simon Deakin & Frank Wilkinson, Rights vs Efficiency? The Economic Case for Transnational Labour Standards, 23(4) Ind. L.J. 289, 290 (1994).
7 Thomas Blanke, Fair and Just Working Conditions (Art. 31) in European Labour Law and the EU Charter of Fundamental Rights 357, 359 (Brian Bercusson ed., 2006).
in Thomas Blanke's opinion, the guarantee of fair and just working conditions in Article 31(2) of the Charter is open-ended and broad and covers all working conditions, explicitly and not explicitly mentioned in the Charter, insofar as they can affect human dignity.8 However, the problem of this approach is that other rights not explicitly mentioned in the Charter will not necessarily have the fundamental status in spite of them already having been classified as fundamental in other sources of European law or international law. Considering the right to disconnect as a component of the right to fair working conditions, one can confirm that the former right is also fundamental. However, at the practical level it makes no significant difference whether a right is seen as fundamental or not, because the "real test of fundamental rights protection is still missing."9
1.13. Human Right?
Much more effective and promising (with respect to the scope of application and enforcement) would be the stipulation of the right to fair working conditions (including the right to disconnect) as a human right.
The U.N. has also broadened its approach to human rights and has recently incorporated the workers' rights into this approach.10 One of the goals in the Agenda for Sustainable Development adopted by the U.N. in 2015 is to "promote inclusive and sustainable economic growth, employment and decent work for all" (Goal 8).
The Decent Work Agenda of the iLO presupposes that decent working conditions can only be guaranteed if labour rights are secured as human rights.11 Judy Fudge pointed out that
the iLO's conception of decent work is far wider than the domain covered by the standard employment relationship and Fordist labour law. A group of experts appointed by the European Commission have recommended moving "beyond employment" in formulating policy responses that will guarantee decent work for all workers.12
Valerio De Stefano stresses that
the categorisation of labour rights as human rights can be particularly beneficial for workers in non-standard arrangements.13
8 Blanke 2006, at 376.
9 Kovacs 2015, at 14.
10 Lee Swepston, How the ILO Embraced Human Rights in Research Handbook on Labour, Business and Human Rights Law 295, 307 (Janice R. Bellace & Beryl ter Haar eds., 2019).
11 Kovacs 2015, at 15.
12 Fudge 2007, at 29.
13 Valerio De Stefano, Non-Standard Work and Limits on Freedom of Association: A Human-Based Approach, 46(2) Ind. LJ. 185, 185 (2017).
We can add that such categorisation can be also beneficial for some categories of dependent and false self-employed workers.
Valerio De Stefano points out that one of the proposals of the Commission on the Future of Work was an adaptation of a Universal Labour Guarantee, which should extend socio-economic rights, including occupational health and safety and limits on hours of work also to self-employed workers and apply them regardless of employment status.14 Also the iLO Centenary Declaration for the Future of Work refers to "all workers" and not to "all employed." Valerio De Stefano concludes that the text of the Centenary Declaration for the Future of Work and the proposal of the universal Labour Guarantee are a step in the direction towards extending the personal scope of labour protection (beyond employment).15
The European Commission is working in the same direction. Recently in the Commission Work Programme 2021 an initiative to improve the working conditions of people providing services through platforms, who are mostly still considered as self-employed, was announced.16 The other novel initiative of the European Commission concerns collective bargaining agreements for the self-employed.17 This document emphasises that
platform workers and also people working on the basis of individual commercial service contracts are often not involved in the determination of the price of their services and may lack the individual bargaining power to negotiate their terms and conditions.18
The objective of this initiative is
to ensure that EU competition law does not stand in the way of initiatives to improve working conditions through collective agreements for solo self-employed where they choose to conclude such agreements, while guaranteeing that consumers and SMEs continue to benefit from competitive prices and innovative business models, including in the digital economy.
14 Valerio De Stefano, Not as Simple as it Seems: The ILO and the Personal Scope of International Labour Standards, Int. Labour Rev. (forthcoming, 2021), at 15 (Jul. 1, 2021), available at https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3790766.
15 Id.
16 Questions and Answers: First stage social partners consultation on improving the working conditions in platform work, European Commission, 24 February 2021 (Jul. 1, 2021), available at https://ec.europa. eu/commission/presscorner/detail/en/qanda_21_656.
17 European Commission, Collective bargaining agreements for self-employed - scope of application EU competition rules (Jul. 1, 2021), available at https://ec.europa.eu/info/law/better-regulation/ have-your-say/initiatives/12483-Collective-bargaining-agreements-for-self-employed-scope-of-application-Eu-competition-rules.
18 Id.
However, at the moment there is no clarity to which groups of self-employed this regulation should finally apply (broad or narrow scope of regulation).
As mentioned above, it is reasonable to consider the right to disconnect to be a component of the right to fair working conditions which respect the worker's health, safety and dignity. The dimension "health and safety" is enshrined also in Article 3 of the revised European Social Charter (the right to safe and healthy working conditions). Klaus Lorcher stresses that
the purpose of Article 3 of the European Social Charter is directly related to the purpose of Article 2 of the European Convention on Human Rights (the right to life), which applies to all workers, including the self-employed.'9
This conclusion is transferable to the right to disconnect. Considering the right to fair working conditions (including the right to disconnect) as a human right is promising in respect of extending the personal scope of international and European labour standards to persons in all forms of gainful employment. Due to digitalisation, there is an increasing resemblance in terms of work performance by an employee and by a self-employed worker, with the result that self-employed persons are becoming more dependent.20 Notwithstanding, not all elements of the right to safe and healthy working conditions should be guaranteed to the self-employed as they can determine their working time and working conditions themselves (in contrast to false self-employed persons). Furthermore, this approach faces a challenge concerning the effective realisation of this right in relation to (dependent) self-employed workers. Similarly, as in the case with the double contribution issue, it is a huge challenge (but not unsolvable) to find a person responsible for insuring safe and healthy working conditions.
1.2. Personal Scope of the Right to Disconnect
According to the proposal, the right to disconnect should apply to all workers and all sectors. At the same time, this right is considered as a "fundamental right which is an inseparable part of the new working patterns in the digital era." Article ' of the proposed Directive (subject matter and scope) refers to "workers who use digital tools for work purposes." it is questionable whether workers who do not use digital tools (e.g. farmers or gardeners) in the performance of their work can realise the right to disconnect or whether such workers can only rely on effective enforcement of the existing rules on working time limitations. Recently, a Digital Compass was launched by the European Commission that articulates the EU's digital targets for 2030 and proposes to develop
19 Klaus Lörcher, Article 3. The Right to Safe and Healthy Working Conditions in The European Social Charter and the Employment Relation 181, 185 (N. Bruun et al. eds., 2017).
20 Kurt 2020, at 317.
a framework of digital principles with the goal that the same rights that apply offline can be fully exercised online.21 In case of the right to disconnect, it seems that the opposite situation can take place: the right to disconnect can be exercised using digital tools but it cannot be exercised "offline."
The Resolution emphasises "that the right to disconnect is of particular importance to vulnerable workers" (section H). At the same time, the proposal does not contain special rules in order to address the special problems of vulnerable nonstandard workers. A similar problem is known in relation to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (hereinafter - the Working Time Directive). Vincenzo Ferrante emphasises that up to now, no ruling in relation to the Working Time Directive
has dealt with the issue of risks to health and safety resulting from having several jobs or other aspects related to working time regulations, particularly problems arising from work-life balance in ordinary or atypical contracts.22
While for standard employees (the right to) limitation of their working time is relevant, for many non-standard, vulnerable workers (on-demand, on-call workers, remote workers, crowdworkers) the inclusion of different periods (of their activity, as well as of looking for activity or waiting for it) into working time is at stake. The proposal of the Directive addresses the issue of long (unpaid) working hours rather than the issue of atomisation (splitting) of working time of non-standard employed workers. For on-call workers and other casual workers whose employment contract does not provide fixed working hours, only the"actual working time" (time of carrying out his or her activity or duties) is counted as working time. This means that periods (before work starts) are not considered as working time and, at the same time, the worker cannot freely dispose of his/her rest time. Simultaneously, employers can avoid the duty to provide paid rest periods (especially daily breaks). In many countries, the notification period before the commencement of work can be shortened in collective agreements in comparison to the period provided for in the legislation. For example, in the Netherlands a collective agreement can provide the regulation that the worker is obliged to accept any work he/she is called upon up to 24 hours before the work starts and "climate workers" have to accept work anytime.23
21 Europe's Digital Decade: Commission sets the course towards a digitally empowered Europe by 2030, European Commission, 9 March 2021 (Jul. 1, 2021), available at https://ec.europa.eu/commission/ presscorner/detail/en/ip_21_983.
22 Vincenzo Ferrante, Between Health and Salary: The Incomplete Regulation of Working Time in European Law, 10(4) Eur. Labour L.J. 370, 376 (2019).
23 From the Presentation of Anja Eleveld "Unpredictable Working Hours and Lack of Financial Insecurity: The Fate of Zero Hour Workers in the Netherlands" at the International Seminar on Zero-Hour Contracts on 22 February 2021 (online).
At the same time, the ways of measuring the working time of remote workers and online platform workers in practice are becoming closer. Some employers count as paid working time of remote workers only time during which the computer is switched on. Platform operators in litigations concerning classification of on-demand drivers (e.g. in the UK) seek to justify a similar view:
Uber contends that the tribunal should have found that the claimants ...
were only working under workers' contracts during periods when they were
actually driving passengers to their destinations.24
However, the employment tribunal and also the Supreme Court did not share this view. The Supreme Court of the UK in the abovementioned judgement has compared the working time of Uber drivers with the working time of "on-call" employees who have to be near their place of work, like in the CJEU case Ville de Nivelles v. Rudy Matzak.25 The employment tribunal and also the Supreme Court found that a driver was "working" under such a contract during any period when (s)he (a) had the Uber app switched on, (b) was within the territory in which he was authorised to use the app, and (c) was ready and willing to accept trips.26
1.3. Material Scope of the Right to Disconnect
1.3.1. Foundations
Less clear is the material scope of the right to disconnect. The proposal stresses the interrelationship between use of digital tools and work-life balance, physical and mental health, working conditions and the right to privacy. The proposal of the Directive is founded on the general principles of fair working conditions in accordance with Article ' 53(')(b) TFEU. According to recital 20 of the proposal, the purpose of this Directive is to improve working conditions for all workers by laying down minimum requirements for the right to disconnect. in our opinion, the right to fair working conditions can be considered as an umbrella right in relation to the right to disconnect. The proposal of the Directive is intended to protect the workers' health and safety. The Working Time Directive, which lays down minimum safety and health requirements for the organisation of working time, has a similar purpose.
The Resolution and the recitals of the legislative proposal refer to numerous sources of European and international labour law that formulate the right to fair working conditions. Article 3' of the Charter provides that every worker has the right to working conditions which respect his/her health, safety and dignity, as well as the right to the limitation of a maximum working time, to daily and weekly rest periods and to an annual period of paid leave.
24 Uber BVand others (Appellants) v. Aslam and others (Respondents) [202'] U.K.S.C. 5, para. '23.
25 Ville de Nivelles v. Rudy Matzak [20'8] CJEU C-5'8/'5, para. '33.
26 Uber BV and others (Appellants) v. Aslam and others (Respondents), para. '23.
While Article 31(2) of the Charter provides a comprehensive three-dimensional approach to working conditions (with respect to health, safety and dignity), the revised European Social Charter differentiates between the right to just conditions of work (Art. 2) and the right to safe and healthy working conditions (Art. 3). Interestingly, the European Committee of Social Rights excludes the risk related to working time from the scope of Article 3 of the revised European Social Charter.27
The European Pillar of Social Rights provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, that the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured, that innovative forms of work that ensure quality working conditions are to be fostered, and that employment relationships that lead to precarious working conditions are to be prevented, including by prohibiting the abuse of atypical contracts (Principle No. 5). It also provides that workers have the right to be informed in writing at the start of employment about their rights and obligations resulting from the employment relationship (Principle No. 7), that the social partners are to be consulted on the design and implementation of economic, employment and social policies according to national practices (Principle No. 8), that parents and people with caring responsibilities have the right to suitable leave and flexible working arrangements (Principle No. 9), and that workers have the right to a healthy, safe and well-adapted work environment and data protection, as well as the right to a working environment adapted to their professional needs and which enables them to prolong their participation in the labour market (Principle No. 10). These principles of the European Pillar of Social Rights can serve not only as a foundation to the right to disconnect, but also to a new concept of working conditions and digital rights in the changing world of work.
1.3.2. Relation Between Working Time and Rest Time
Limitations on working time stood, from the very beginning, at the centre of workers' struggle for fair working conditions.28 It is worth mentioning that among the directives and recommendations regulating different labour law aspects, the majority regulate different aspects of working time.
In the digital age, with a growing flexibility in the organisation of working time, questions arise how to legally qualify work that is performed beyond the regular working time,29 how to prevent blurring the boundaries between working and rest time and finally, how to address the main (and old) issue of limiting unrecorded
27 Lörcher 2017, at 184.
28 Blanke 2006, at 359.
29 Iva Bjelinski Radie, The Impact of Digitalisation on Individual Labour Relations: Working Time as an Outdated Concept? in The Future of Work: Labour Law and Labour Market Regulation in the Digital Era 211, 215 (Adalberto Perulli & Tiziano Treu eds., 2021).
working time. Different solutions in order to address these topical problems concerning the blurring of boundaries between working and rest time come into question. Some scholars, e.g. Alain Supiot and Leszek Mitrus, proposed to introduce the notion of a "third time" that is neither working time nor rest period30 or, in other words, an intermediate category between working and rest time.3'
According to the proposal of the Directive, the right to disconnect should prevent "blurring the boundaries between working time and free time" and recall that the time during which a worker is available or reachable for the employer is working time. This shows that the proposal is against the introduction of a third time category, which is also in line with the Court of Justice of the European Union (hereinafter - CJEU) approach to working time and rest time as mutually exclusive notions. According to the case law of the CJEU, all three conditions are required for the qualification of time as working time, namely when a person is ') working, 2) at the employer's disposal and 3) carrying out his or her activity or duties. Rest periods are any periods which are not working time (Art. 2 of the Working Time Directive).
it is questionable - if working time and rest time are mutually exclusive - why we would need "the right to disconnect," as the worker is free of the obligation to work during his/her rest time. What is the difference between the right to disconnect and the right to a limitation of the maximum working time?
The key measure implementing the right to disconnect is a provision of the system for measuring working time. The consequences of not recording working time can be illustrated by the example of the iCT sector. Employees who do not record their working time tend to work longer: 34.6 per cent report that they regularly work more than 48 hours per week, that they are more likely to do a lot of overtime work and are more likely to be expected to be available outside normal working hours.32 However, the same obligation already follows from Article 3' (2) of the Charter in conjunction with Articles 3 and 5 and 6(b) of the Working Time Directive and Articles 4(') and 6(') of Council Directive 89/39'/EEC of '2 June ' 989 on the introduction of measures to encourage improvements in the safety and health of workers at work. in the case C-55/'8 the CJEU held that in order to ensure the effectiveness of the right to a limitation of the maximum working time and minimum rest periods the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured (point 60). in this sense, the right to disconnect represents a remedy to protect the fundamental right enshrined in Article 3'(2) of the Charter.
30 Ferrante 2019, at 384.
31 Leszek Mitrus, Potential Implications of the Matzak Judgment (Quality of Rest Time, Right to Disconnect), 10(4) Eur. Labour LJ. 386, 395 (2019).
32 Astrid Schmidt & Sylvia Skrabs, Arbeitszeit im Spannungsfeld zwischen Digitalisierung und Gesundheitsschutz in Gute Arbeit. Arbeitszeit und Digitalisierung - Impulse für eine moderne Arbeitsgestaltung 119, 125 (Lothar Schröder ed., 2020).
1.3.3. Intensity of Work
Some aspects of working conditions characterise the "stresses and strains of work," in particular: quantitative - duration of work; and qualitative - intensity of work. The criterion "intensity of work" has become, over the last few years, a key factor in the evaluation of work quality of employees. Recent studies show that, for example, due to digitalisation the amount of work has increased for 56 per cent of the employees in Germany.33 Furthermore, 33 per cent of employees whose working time exceeds the contractual working time by more than two hours justify this extension of working time on the basis that the work cannot otherwise be done.34 The effective realisation of the right to disconnect is not possible by regulating only the quantitative dimension of working time without also addressing the issue of intensity of work. However, the proposal of the Directive leaves this issue open.
1.3.4. Connection Between Working Time and Wage
One of the purposes of the regulation of working time is the realisation of the right to fair wages in the sense of "equal pay for equal work"; without the measuring of working time and a limitation of working hours workers have to work long hours without (adequate) payment.35 However, the proposal does not attach much importance to this interdependence. The Resolution (section C) mentions only briefly that the "always on" culture can have detrimental effects on fair working conditions, including fair remuneration. The proposal of the Directive does not refer to the ILO Conventions regarding "fair wage" or the right to fair remuneration as enshrined in Article 4(2) of the revised European Social Charter or Principle 6 of the European Pillar of Social Rights.
1.4. New Concept
In our opinion, there is a huge overlapping between the right to disconnect and the right to a limitation of working time. On the one side, disconnection is a remedy, a measure to prevent abuse on the part of the employer, an instrument of effective realisation of the right to fair working conditions as enshrined in Article 31(2) of the Charter. One the other side, the right to fair working conditions can be considered as an umbrella right in relation to the right to disconnect, which respects the worker's health, safety and dignity. The right to disconnect is a component of the right to fair working conditions, but not a new labour right.
The Resolution stresses the importance of the right to health (mental and physical), safety at work, the right to privacy, data protection and to a work-life balance. The right
33 Nadine Müller, Digitalisierung und psychische Belastungen - Bilanz und Handlungsperspektiven für Gute Arbeit in Gute Arbeit. Arbeitszeit und Digitalisierung, supra note 32, at 34, 39.
34 Beate Beermann, Menschengerechte Gestaltung der Arbeit - Arbeitsschutz in der digitalisierten Arbeitswelt in Gute Arbeit. Arbeitszeit und Digitalisierung, supra note 32, at 109, 110.
35 Ferrante 2019, at 375-376.
to disconnect is only one factor that influences these rights/dimensions. Some measures of Article 4 of the proposal of the Directive implementing the right to disconnect, such as health and safety assessments, including psychosocial risk assessment, or awareness-raising measures, go beyond ensuring the limitation of working time. For this reason, the right to disconnect can be seen a starting point for a new, human-centered consistent concept for working conditions which respect the health, safety and dignity of an employed person and for a new concept of digital labour rights. it is necessary to limit not only the quantity of work (besides regular working time) but also unreasonable monitoring and surveillance, including algorithmic control, and the intensity of work (during work). Furthermore, the right to disconnect is a further step in the regulation of not only well-being at work but also well-being in life (ensuring effective rest time). For this reason, even if it is not a new labour right, to apply such a Directive is better than to wait until a new consistent concept of working conditions/digital rights is elaborated. in order to realise a new concept, it is possible to adapt a (single) Framework Directive or to adapt several separate Directives to different aspects of working conditions. Until now, European labour legislation lacks such a coordinated consistent and comprehensive European regulatory approach concerning labour rights and working conditions in the digitalised world of work. Some of the Directives are out of date, some initiatives have not been realised until now or are only in their planning stage. For example, Framework Directive 89/39'/EEC on Safety and Health of Workers at Work does not explicitly mention the terms"psychosocial risk" or"work-related stress."36 Recent studies show that long working hours can increase the risk for work accidents. Permanent availability can cause mental illness (which can turn into physical illness). The iLO List of Occupational Diseases (revised in 20'0) includes mental and behavioural disorders. in particular, post-traumatic stress disorder and other mental or behavioural disorders show a direct link between the exposure to risk factors arising from work activities and the mental and behavioural disorder(s) manifesting in the worker over time.37 However, in the majority of the EU Member States mental disorders are still not listed among occupational diseases. The European Pact for Mental Health and Wellbeing of 2009 called on the European Commission to issue a proposal for a Council Recommendation on mental health and well-being. However, such a recommendation has not been elaborated and adopted until now.38 in the Draft Council Conclusions concerning a new EU Strategic Framework on Health and Safety at Work for 202'-2027, different measures are listed that have to be realised in order to address the challenge of the changing world of work and the challenge of psychosocial risks and mental health,
36 Aditya Jain & Stavroula Leka, Policy, Law and Guidance for Psychosocial Issues in the Workplace: An EU Perspective, OSHWiki (Jul. ', 202'), available at https://oshwiki.eu/wiki/Policy,_law_and_guidance_ for_psychosocial_issues_in_the_workplace:_an_EU_perspective.
37 iLO, iLO List of Occupational Diseases (revised 20'0) (Jul. ', 202'), available at https://www.ilo.org/wcmsp5/ groups/public/---ed_protect/---protrav/---safework/documents/publication/wcms_'25'37.pdf.
38 Jain & Leka, supra note 36.
e.g. the issuance of a Communication on psychosocial risk factors, risk assessment, risk management and psychosocial resources at work.
2. Russian Labour Law
2.1. Remote Work and the Right to Disconnect
In Russia, discussions concerning the right to disconnect arose, essentially, in connection with the reform of remote work. In Russia, like in many other countries, remote work has increased by a multiple of the previous level during the coronavirus pandemic. While before the pandemic, the share of remote work was approximately 2 per cent, in the course of the pandemic remote work has increased to 16 per cent.39 The low prevalence of (official) remote work before the pandemic can be explained by the rigid legislative approach to this phenomenon. Remote work was first introduced into the LC RF in 2013 (Chapter 49.1 on the particularities of the labour regulations of remote employees);40 until then, the norms regulating the labour of home workers (Chapter 49 LC RF) had been applied to remote workers. The LC RF in its initial version made provisions only for constant (regular) remote work, which should be provided for in the employment contract. This regulation was strongly criticised41 as it impeded the application of alternating remote work; in order to avoid this regulation, informal agreements and civil law agreements were concluded.
Due to coronavirus, many employees were forced to switch to remote work. However, Chapter 49.1 LC RF does not provide for special rules for a transfer to remote work in such a situation. Existing general rules concerning the amendment of the employment contract were also not suitable for this situation. In practice, different legal solutions were elaborated and applied in order to tackle the situation. In order to fill the legislative gaps and bring more flexibility to the regulation of remote work, on 8 December 2020, Federal Law No. 407, amending the LC RF concerning the regulation of remote (distant) work42 was adapted, and it came into force on 1 January 2021.
40
Цифровая грамотность и удаленная работа в условиях пандемии: совместный аналитический доклад ВЦИОМ и Social Business Group [Digital Literacy and Teleworking in a Pandemic: Joint Analytical Report of VZIOM and Social Business Group] (Jul. 1, 2021), available at https://socialbusinessgroup. ru/uploads/s/m/s/i/msiugb4swvjk/file/AMo1W3qz.pdf?preview=1.
Федеральный закон от 8 декабря 2020 г. № 407-ФЗ «О внесении изменений в Трудовой кодекс Российской Федерации в части регулирования дистанционной (удаленной) работы и временного перевода работника на дистанционную (удаленную) работу по инициативе работодателя в исключительных случаях» // Собрание законодательства РФ. 2020. № 50 (ч. 3). Ст. 8052 [Federal Law No. 407-FZ of 8 December 2020. On Amending the Labour Code of the Russian Federation Regarding the Regulation of Remote (Distant) Work and Temporary Transferring of an Employee to Remote (Distant) Work at the Initiative of the Employer in Exceptional Cases, Legislation Bulletin of the Russian Federation, 2020, No. 50 (Part 3), Art. 8052].
Elena Gerasimova et al., New Russian Legislation on Employment of Teleworkers: Comparative Assessment and Implications for Future Development, 2 Pravo. Zhurnal Vyssheyshkoly ekonomiki 116 (2017).
Федеральный закон от 5 апреля 2013 г. № 60-ФЗ «О внесении изменений в отдельные законодательные акты Российской Федерации» // Собрание законодательства РФ. 2013. № 14. Ст. 1668
39
41
The revised Article 312.1 LC RF uses the terms "remote work" (дистанционная работа) and"distant work" (удаленная работа) as synonyms. The sense of the definition of "remote work" has not been changed from the existing one: remote (distant) work is defined as a performance of labour function specified in the employment contract outside of the workplace,43 using informational and tele-communicational networks (including the internet) for the performance of labour functions and interaction with the employer on issues related to work performance.44 The revised LC RF, like labour laws in other countries, e.g. France,45 moves from regular remote work to irregular and partial remote work and allows - apart from permanent remote work - also for temporary work (up to six months) and alternating remote work. Even after the recent amendments the LC RF provides neither for a right of the employee to remote work nor for a right of the employee to request remote work.
During the drafting process concerning the amendment of Chapter 49.1 LC RF it was widely discussed whether"a right to disconnect" (right of employees to be offline)46 needed to be introduced.
in the early stages (in June 2020) a regulation was introduced in the draft legislation stating that any contact of an employee with the employer outside of the established working time should be treated and paid as overtime work and be allowed only in cases of industrial (production) necessity. The draft legislation did not directly refer to the disconnection from digital tools, however, the addressees of this regulation were only remote workers who use informational and tele-communicational networks (including the internet) for the performance of work and interaction with the employer. This means that for these workers overtime work could be ordered only by means of digital tools. Furthermore, the function of some measures implementing the right to disconnect in the proposal of the Directive and of the draft law in Russia has one main objective: to restrict overtime work. According to Article 4 of the proposal of the Directive, the Member States shall provide the criteria for any derogation by employers from their requirement to implement a worker's right to disconnect and
[Federal Law No. 60-FZ of 5 April 2012. On Amending Certain Legislative Acts of the Russian Federation, Legislation Bulletin of the Russian Federation, 2013, No. 14, Art. 1668].
43 This means outside of the employer's premises, his/her branch office, representative office, or any other separate structural unit (including those located in another territorial locality), outside of a stationary workplace, territory or object which is directly or indirectly under the employer's control.
44 The translation has been adopted from Gerasimova et al. 2017, at 122.
45 Bundesministerium fur Arbeit und Soziales, Verbreitung und Auswirkungen von mobiler Arbeit und Homeoffice: Kurzexpertise, Forschungsbericht 549 (Oktober 2020) (Jul. 1, 2021), available at https://www.bmas.de/SharedDocs/Downloads/DE/Publikationen/Forschungsberichte/fb-549-pdf-verbreitung-auswirkung-mobiles-arbeiten.pdf?_blob=publicationFile&v=1.
46 Лютов Н.Л. Законодательные инициативы, связанные с дистанционным трудом: временный ажиотаж на фоне пандемии или устойчивая тенденция? // Журнал российского права. 2020. № 12. C. 78-88 [Nikita L. Lyutov, The Legislative Initiatives Regarding Remote Work: A Temporary Pandemic Turmoil or Sustainable Trend?, 12 Journal of Russian Law 78 (2020)]; Nikita Lyutov & llona Voitkovska, Remote Work and Platform Work: The Prospects for Legal Regulation in Russia, 9(1) Russian LJ. 81, 92 (2021).
in case of a derogation, the criteria for determining how compensation for work performed outside working time is to be calculated.
The reformed Chapter 49.1 LC RF did not incorporate the abovementioned draft regulation and establishes only that "the time of the interaction with the employer is included into the working time of the employee" (Art. 312.4 LC RF).
2.2. Measuring and Recording Working Time
At the moment, one of the main problems with the organisation of working time in Russia concerns the application of special working regimes and the recording of working time.
2.2.1. Irregular Working Day
An irregular working day (ненормированныйрабочий день) is a special working regime according to which several categories of employees may be, from time to time, engaged at the order of the employer in fulfilling their labour functions beyond established working times, when this is required. The list of positions of employees with an unregulated working day shall be determined in collective agreements or local normative acts which shall be adopted taking into account the opinion of the representative body of employees (Art. 101 LC RF). This regulation is inherited from the Soviet Union. This regime can be set for several groups of employees, especially those who fulfil administrative and managerial functions, whose working time is difficult to record, or those employees who can allocate their working time at their own discretion. The last two characteristics are typical also for remote employees. This regime is compensated with additional rest days. An employee on such a working regime is obliged to work beyond the regular working hours if such a need arises, as this is common for this working time regime.47 The reform of this working regime is currently under discussion. Hereby, in the first place the establishment of adequate compensation for this working regime is discussed rather than its abolishment.
It is interesting to draw a parallel to the"forfait en jours" system in France. Under this system, employees (mainly managers and senior technical specialists) work a certain number of days per year without fixed daily or weekly working hours compensated by additional rest days. Regulations concerning the maximum duration of daily and weekly working time is not applied to employees working under this system. It seems that this system has contributed to the blurring of boundaries between working time and private life for these categories of employees. The trade union for managers (UGICT-CGT) has launched a campaign in favour of a right to disconnect.48
47 Комментарий к ст. 101 Трудового кодекса Российской Федерации // Комментарий к Трудовому кодексу Российской Федерации [Commentary to Article 101 LC RF in Commentary to the Labour Code of the Russian Federation] (Yuri P. Orlovskii ed., 8th ed. 2019).
48 Eurofound, Right to Disconnect in the 27 EU Member States 39, Working Paper (2020) (Jul. 1, 2021), available at https://www.eurofound.europa.eu/sites/default/files/wpef20019.pdf.
2.2.2. Recording of Working Time
According to Article 9' LC RF, the employer is obliged to record the working time actually performed by each employee. However, in practice there are significant problems with the enforcement of this rule. Furthermore, there are different conflicting regulations concerning this issue. For example, the employer has to keep record of the working time of each employee while, at the same time, overtime work performed by employees who are on the "irregular working day" working regime do not have to be recorded.49 According to the study of the Russian Union of industrialists and Entrepreneurs, in Russia 8 million employees are working ' 2 hours per day, voluntarily or involuntarily.50
Another problem concerns the assessment of what time should be counted as "working time." in Russia there is the same problem with the "splitting of working time" that was illustrated in the first part of the article concerning non-standard employees in different European countries. Employers seek to exclude various periods from the working time not only of non-standard employees but also of standard employees, e.g. preparation time for work activities, such as preparation for a flight by pilots.5' By applying such an approach it cannot not be excluded that in the case of remote work, similar as already known with crowdwork,52 some employers will try to install on the employees' computers special software in order to keep record of their "pure" working time. There are a lot of companies that offer such software for employers in order to permanently monitor the employees' activity and their efficiency, and to also keep record of their working time.53 During the COViD-'9 pandemic, demand for employee monitoring systems has increased: purchases of the Russian"Stakhanovets" programme have doubled; purchases of the programme "CrocoTime" have increased 2.5-fold.54
49 Commentary to Article 101 LC RF, supra note 47.
50 Хныкин Г.В. Проблемы правового регулирования рабочего времени // Трудовое право в России и за рубежом. 2020. № 4. С. 35 [Gennadii V. Khnykin, Issues of the Legal Regulation of Working Hours, 4 Labor Law in Russia and Abroad 34, 35 (2020)].
51 Id. at 35.
52 Mariya Aleksynska et al., Work on Digital Labour Platforms in Ukraine: Issues and Policy Perspectives, lLO (2018) (Jul. 1, 2021), available at https://www.ilo.org/wcmsp5/groups/public/—ed_protect/— protrav/—travail/documents/publication/wcms_635370.pdf.
53 You can find numerous websites on the internet that offer different monitoring software, also with the goal of recording working time, e.g., Зимятов В. Топ-5 систем учета рабочего времени 2020 года // vc.ru. 24 января 2020 г. [Viacheslav Zimiatov, Top 5 Time Recording Systems for 2020, vc.ru, 24 January 2020] (Jul. 1, 2021), available at https://vc.ru/services/103057-top-5-sistem-ucheta-rabochego-vremeni-2020-goda.
54 Сальникова Д. Мониторинг за монитором: зачем компании следят за работниками на удаленке // РБК Pro. 26 июня 2020 г. [Daria Salnikova, Monitoring Behind the Monitor: Why Companies Are Watching Employees Remotely, RBC PRO, 26 June 2020] (Jul. 1, 2021), available at https://pro.rbc.ru/ news/5ee7a7859a79472546d1e573.
According to part 2 of Article 86 LC RF, by determining the volume and the content of the processed employee's personal data, the employer must follow the Constitution of the Russian Federation, the Labour Code and other federal laws. Article 5 of Federal Law No. 152-FZ "On Personal Data" contains the principles for the processing of personal data which must also be applied to labour relationships. In particular, the content and volume of the processed personal data must correspond to the monitoring objectives; the processed personal data should not be superfluous in relation to the declared goals of their processing; after achievement of the goals of the processing, the processed personal data should be destroyed or depersonalised. Unfortunately, these principles for the processing of personal data are often not observed in practice and in the case law. For example, in the case law concerning video recording shows, courts do not a na lyse whether the content and volume of the processed personal data correspond to the monitoring objectives of the employees' right to privacy and whether the employers' interest in the monitoring of employees is balanced.55 Also, in cases of employee monitoring by means of modern digital technologies like GPS, courts consider such monitoring as justified and legal. Let me illustrate this with an example from the case law. An employment contract on remote work in a sales development was concluded between an employer and an employee. The employer initiated an investigation in relation to the employee concerning the fulfilment of labour duties. The employer found out that the employee reports in the Veeva system, where the daily working activities and appointments of employees were entered, did not comply with the monthly geolocation report on the movement of the company car during working hours. The court did not investigate whether the monitoring procedure was fulfilled, whether the employee had agreed to such monitoring, whether less intrusive methods of monitoring would have been sufficient, or whether the processed personal data corresponded to the monitoring objectives. The monitoring during the whole working time of the employee was not questioned56. In this situation, it is difficult to believe that the case law will change their approach in relation to the monitoring of an employee's activity and working time by means of electronic tools (software). It is necessary to provide for clear limitations regarding the application of such digital tools, including an assessment of the necessity and proportionality of their application. Unlimited permanent monitoring presents a serious violation of the right to personal data and the right
55 Cf. Апелляционное определение СК по гражданским делам Свердловского областного суда от 16 ноября 2016 г. по делу № 33-20507/2016 // СПС «Гарант» [Appeal Judgement of the Sverdlovsk Regional Court of 16 November 2016 in Case No. 33-20507/2016, SPS "Garant"] (Jul. 1, 2021), available at http://base.garant.ru/144652169/.
56 Cf. Апелляционное определение СК по гражданским делам Новосибирского областного суда от 26 сентября 2017 по делу № 33-9422/2017 // СПС «СудАкт» [Appeal Judgement of the Novosibirsk Regional Court of 26 September 2017 in Case No. 33-9422/2017, SPS "SudAct"] (Jul. 1, 2021), available at https://sudact.ru.
of employees to protection of their dignity in the framework of their labour activities (Art. 2 LC RF).57
If employers intend to keep record only of "pure" working time, even technical breaks cannot prevent an abuse on the part of the employer. At the same time, as of 1 January 2021 the Recommendations approved by the Regulation of the Chief State of Health concerning breaks when working with a computer (SanPiN 2.2.2/2.4.1340-03) are no longer in force.58 According to this standard, the duration of breaks depended on the type of work activity and the level of workload during the work shift, e.g. within an 8-hour working shift, the total break time ranged from 50 to 90 minutes; a 12-hour working day required breaks from 80 to 140 minutes. The new standard has not been enacted until now. Some orders have been issued by the Ministry of Labour of the Russian Federation that regulate breaks for several categories of employees who work with computers.59 In the majority of cases, such breaks are regulated in local normative acts, in particular in the internal workplace regulation (правила внутреннего трудового распорядка). Without a unified standard concerning breaks, the regulation of a minimum duration of breaks is left to the discretion of the employer.
Without limiting the application of the "irregular working day" working regime and setting up a duty for employers to record - transparently and objectively -the duration of time worked each day by each employee, including those with "an irregular working day," the introduction of the right to disconnect can turn into an empty promise.60
Olga Chesalina, 'Glass Employees' vs. Platform Workers: Are There Any Differences? in The Value of Work and its Rules between Innovation and Tradition: 'Labour is Not a Commodity' Today 64 (Anthony Forsyth et al. eds., 2020).
Постановление Правительства Российской Федерации от 8 октября 2020 г. № 1631 «Об отмене нормативных правовых актов федеральных органов исполнительной власти, содержащих обязательные требования, соблюдение которых оценивается при проведении мероприятий по контролю при осуществлении федерального государственного санитарно-эпидемиологического надзора» // Собрание законодательства РФ. 2020. № 42 (ч. 3). Ст. 6597 [Decree of the Government of the Russian Federation No. 1631 of 8 October 2020. On the Abolition of Regulatory Legal Acts of Federal Executive Bodies Containing Mandatory Requirements, Compliance with Which is Assessed When Carrying Out Control Measures in the implementation of Federal State Sanitary and Epidemiological Supervision, Legislation Bulletin of the Russian Federation, 2020, No. 42 (Part 3), Art. 6597].
Постановление Минтруда России от 10 сентября 1993 г. № 152 «Об утверждении Норм времени на работы по автоматизированной архивной технологии и документационному обеспечению органов управления» // СПС «Гарант» [Resolution of the Ministry of Labour of the Russian Federation No. 152 of 10 September 1993. On Approval of Time Norms for Works on Automated Archival Technology and Documentary Support of Management Bodies, SPS "Garant"] (Jul. 1, 2021), available at http://base.garant.ru/1593281/.
This approach is also followed by Nikita Lyutov, cf. Агеева О, Старостина Ю. Удаленный режим закрепился в правовом поле // РБК. 26 ноября 2020 г. [Olga Ageeva & iulia Starostina, The Remote Regime Is Entrenched in the Legal Framework, RBC, 26 November 2020] (Jul. 1, 2021), available at https:// www.rbc.ru/newspaper/2020/11/26/5fbe5bca9a79472d900c65e3.
57
58
59
2.3. Perspectives of the Application of Self-Protection of Labour Rights in Оrder to Guarantee the Right to Disconnect
As already mentioned in the European context, the right to disconnect can be explained twofold: firstly, the right to disconnect can be considered as a component of the right to fair working conditions and, secondly, as a remedy, a measure to prevent abuse from the employer's side, i.e. as an instrument of effective realisation of the right to working conditions as enshrined in Article 3'(2) of the Charter. it is interesting to analyse in the context of Russian labour law whether the right to disconnect can also be understood as a mechanism of protection of labour rights, like self-protection of labour rights by the employee as enshrined in Article 379 LC RF. According to this article, in the interest of self-protection of employees' labour rights, employees may, having notified in written form their employer or their direct supervisor or another employer's representative, refuse to perform work that is not stipulated in their employment contract or that presents a direct threat to their life or health, with the exception of cases provided for in the LC RF and other federal laws. During the period of their refusal to perform work, employees retain all rights provided by the labour legislation.
it follows from part 2 of Article 379 LC RF that self-protection of labour rights is not limited to the cases listed in part ' of the article: for the purpose of protecting labour rights, an employee is also entitled to refuse to perform work in the other cases determined in the LC RF or other federal laws. The labour rights that can be protected in the way of self-protection also include the right to timely and full payment of wages, and the right to protection of life and health at work.6' The similarity between self-protection and the right to disconnect consists in their similar function: to protect an infringed labour right; in the case of the right to disconnect the right to rest time and right to the maximum duration of working day is protected. The next similarity consists in the protection of employees (who exercise their right to disconnect or self-protection of labour rights) against adverse treatment on the part of the employer (compare: Art. 380 LC RF, Art. 5 of the proposal of the Directive).
The difference consists in the meaning of the refusal to work: in the case of self-protection the refusal to work is not the primary goal; it is an instrument to protect other labour rights (e.g. the right to receive wages); in the case of the right to disconnect the infringed right is already protected (re-established) by the refusal to work. Russian scholars differentiate between self-protection of labour rights and the guarantees for certain categories of employees established in the LC RF. For example, part 2 of Article 259 LC RF provides that women with children under the age of three years may be sent on business trips and be obliged to work overtime, at nighttime, on free days and holidays only upon their written consent and if this is not forbidden on grounds of medical recommendations made to them. Furthermore, women with
6' Commentary to Article 379 LC RF, supra note 47.
children under the age of three years are to be informed about their right to refuse business trips, working overtime, at nighttime, on free days and holidays in written form. A situation when a woman with children under three years refuses to work at nighttime or to go on a business trip does not present a case of self-protection of a labour right, because it is already a guarantee provided for in the LC RF.62 Similar discussions take place also in the EU concerning the right to disconnect: Why do we need to introduce a right to disconnect when EU labour law (or, accordingly, national labour law) already regulates and guarantees the maximum duration of working time and minimum duration of rest time?
In our opinion the right to disconnect consists of at least two elements. On the one side, employees are entitled to refuse to work outside the working time established for them. And within this meaning, we can speak about the self-protection of a labour right; hereby, the refusal to work leads to the unconditional restoration of the infringed right. However, the right to disconnect is not limited to an "omission"/"inaction" on the part of the employee. This right includes the negative obligation of the employer to refrain from connecting/contacting a worker as well as the positive obligation of him or her to take the necessary measures to provide workers with the means to exercise their right to disconnect. For this reason, it is not sufficient to regulate the right to disconnect only in the form of self-protection of labour rights without establishing a corresponding obligation of the employer. In the Russian context it would be promising to derive the obligation of the employer to refrain from contacting employees outside of their working time from the employer's duty to provide safety and fair working conditions (Art. 22 LC RF) and to regulate such a duty of the employer in Article 212 LC RF (employers' duties to ensure safe conditions and labour protection).
Conclusion
The right to disconnect is a tool against constant over-accessibility in today's"always on" communication hub, and against blurring the boundaries between working time and rest time, thus a way to limit working time and guarantee effective rest time. The effectiveness of the right to disconnect depends on the implementation of practical measures in national law that enable the effective realisation of the right to disconnect. With respect to European labour law, Member States enjoy a discretion for that purpose; at the same time, they are required to ensure that the effectiveness of these rights is guaranteed in full.63 The recent decision of the CJEU in case C-55/18 concerning the measuring of working time can serve as an orientation concerning possible problems
62 Костян И.А. Самозащита работниками трудовых прав // Трудовое право России: учебник [Irina А. Kostian, Self-Protection of Employees' Labour Rights in Russian Labour Law: Textbook] 544 (Alexander M. Kurennoi ed., 2016).
63 Federación de Servicios de Comisiones Obreras (CCOO) v. Deutsche Bank SAE, [2019] CJEU C-55/18, para. 42.
in the future as regards the enforcement of the right to disconnect. The core measure for implementing the right to disconnect is to set up an objective, reliable and accessible system ensuring that the duration of time worked each day by each worker can be measured. The CJEU decision has shown gaps in the national legislation of the Member States concerning the recording of working time. For example, in Germany, according to section '6 subsection 2 sentence ' of the Working Time Law (ArbZG), the employer is obliged to keep record only of working time exceeding its daily duration. in accordance with the CJEU decision, all employers will have to provide a system enabling them to keep record of the working day of each employee for every working day. However, there are still many open questions concerning the implementation of the CJEU decision, and political actors have different opinions on whether section '6 of the Working Time Law has yet to be altered.64
if measures implementing the right to disconnect, including the system for measuring working time, will develop a direct horizontal effect, this can provoke resistance on the part of employers.65 Effectiveness of the right to disconnect would increase if it were formulated not as a right (of an employee) but as a duty of the employer. However, this would reduce the chances of adaptation of such a Directive. it seems that the most important instrument in the realisation of the right to disconnect remains in the form of collective agreements.66
Furthermore, the effective enforcement of a right to disconnect in all countries depends not only on the legal requirement to implement such a right, but also on many other factors like corporate culture; type of employment relationship (standard open-ended relationship or non-standard); need to work in different time zones; intensity of work; the way in which working time is measured; sanctions for the violation of this right and effectiveness of labour inspections. Due to the coronavirus crisis, many employees have found themselves in insecure job situations that boost unpaid overtime work (from the home office) and prompt the self-exploitation of employees who are ready to work "voluntarily." Valerio De Stefano speaks about
the"implicit threat" mechanism, namely the fear and reluctance to exercise their contractual and labour rights in fear that their temporary contract may not be renewed or prolonged, should they do so.67
64 European Court of Justice (ECJ) Lays Down Substantial Duties of Employers for the Recording of Working Time Based on the Working Time Directive, honert + partner, 21 June 2019 (Jul. 1, 2021), available at https://honert.de/en/european-court-of-justice-ecj-lays-down-substantial-duties-of-employers-for-the-recording-of-working-time-based-on-the-working-time-directive/.
65 Inken Gallner, Arbeitszeit- und Urlaubsrecht europäisch gedacht, 2 Soziales Recht 50 (2020).
66 Müller 2020, at 45.
67 Valerio De Stefano, Smuggling-in Flexibility: Temporary Work Contracts and the "Implicit Threat"Mechanism: Reflections on a New European Path, ILO (2009) (Jul. 1, 2021), available at https://ilo.primo. exlibrisgroup.com/discovery/fulldisplay/alma994469943402676/41 ILO_INST:41 ILO_V2; De Stefano 2017, at 185.
For this reason, the realisation of the right to disconnect (and of the right to fair working conditions in general) in relation to non-standard workers should be addressed particularly. The new concept of fair working conditions has to address the effectiveness of labour rights irrespective of the form of employment.
In Russia, a huge obstacle in the realisation of the right to disconnect can be the application of the"irregular working day" working regime, enforcement problems with the recording of working time, and attempts to exclude certain periods from working time. The self-protection of labour rights cannot substitute the right to disconnect because the latter is not limited to an "omission"/"inaction" on the part of the employee and presupposes different measures implemented by the employer.
The right to disconnect is not a new labour right but can be seen as a starting point for a new, human-centred consistent concept for working conditions which respect the health, safety and dignity of an employed person, and for a new concept of digital rights. It is necessary to limit not only the quantity of work (besides regular working time) but also to restrict unreasonable monitoring and surveillance, including by means of algorithmic control; to regulate adequately the intensity of work (during working time) and periods that have to be included in the working time; and to protect personal data and the right to privacy. Such a regulation is apt to improve safety and health at work and prevent mental and physical diseases.
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Information about the author
Olga Chesalina (Munich, Germany) - Senior Researcher, Max Planck institute for Social Law and Social Policy (33 Amalienstraße, Munich, 80799, Germany; e-mail: chesalina@mpisoc.mpg.de).
