What Is the Right to Disconnect?

The right to disconnect refers to employees' right not to be contacted and to refrain from responding to work-related communications - such as phone calls, emails, and other messages - outside their working hours, including during rest periods, annual leave, other forms of leave, and annual holidays.

In its Resolution of 21 January 2021, the European Parliament emphasized that the widespread digitalisation of work and the increasing phenomenon of hyperconnectivity may lead to an excessive extension of working time, thereby increasing the risk of unpaid overtime, work-related fatigue, and psychosocial, mental, and physical health problems. 

Against this background, the European Parliament called on the European Commission to propose a directive requiring Member States to adopt measures implementing the right to disconnect. To date, however, no such directive has been adopted.

In the absence of a harmonised EU legal framework, the regulation of the right to disconnect is left to the individual Member States, each of which has adopted its own legislative approach.

This article provides a comparative analysis of the legal framework governing the right to disconnect in Italy and Portugal.

THE RIGHT TO DISCONNECT IN ITALY: The important role of Collective Bargaining 

The right to disconnect was first introduced into Italian law by Law No. 81 of 22 May 2017, which regulates remote working. This Law provides that remote working arrangements are to be governed by an individual agreement between the employee and the employer. Among other matters, this agreement must specify rest periods and the technical and organisational measures necessary to ensure that employees are able to disconnect from work-related devices.

To date, however, the Italian legal system has not established a general statutory provision governing the right to disconnect outside the context of remote working.

During the COVID-19 pandemic, the right to disconnect was also recognised in the public sector through emergency legislation. These emergency provisions, however, ceased to apply in 2022.

At present, the general regulation of the right to disconnect is largely entrusted to collective bargaining, both in the public and private sectors. Collective agreements may establish specific rules governing the exercise of this right. In particular, the National Protocol on Remote Working of 7 December 2021 reaffirmed the need to identify periods during which employees are entitled to disconnect, together with the technical and organisational measures required to ensure the effective exercise of this right.

Several NCBAs and company-level agreements have already introduced provisions governing the right to disconnect. For example, the NCBA for the Metalworking Industry regulates on-call availability periods and allows for the identification of specific disconnection periods. Similarly, the NCBA for the Banking Sector contains provisions on employee availability and the right to disconnect, particularly in relation to remote working.

A number of large Italian companies have also adopted specific internal policies on the right to disconnect, primarily through company-level agreements or supplementary agreements implementing the relevant NCBAs. This is particularly common in the banking, insurance, and telecommunications sectors, where employers have introduced internal rules establishing disconnection periods, prohibiting the sending of work-related communications outside normal working hours except in justified cases of urgency, and defining clearly delimited on-call availability periods.

These policies are frequently the result of company agreements concluded with the most representative trade unions, in implementation of the National Protocol on Remote Working of 7 December 2021, which requires employers to establish disconnection periods and appropriate organisational measures to ensure their effectiveness.

THE RIGHT TO DISCONNECT IN PORTUGAL: A recognized right for all employees

In Portugal, the right to disconnect was formally introduced by Law No. 83/2021 of 6 December 2021, which amended the Portuguese Labour Code (Código do Trabalho) to strengthen the legal framework governing telework and remote working arrangements.

Article 199-A of the Portuguese Labour Code establishes a duty on employers to refrain from contacting employees outside their normal working hours, except in situations of force majeure. This provision applies broadly and is not confined to teleworking or remote working arrangements - it constitutes a general obligation incumbent upon all employers.

The statutory prohibition extends to all forms of contact, including telephone calls, emails, messages. The employer's duty of abstention operates during rest periods, weekly rest days, public holidays, annual leave, and any other periods during which the employee is not required to be available for work.

Unlike the Italian model, which ties the right to disconnect primarily to individual smart working agreements and collective bargaining, the Portuguese approach is characterised by its universal statutory application. The duty not to contact employees outside working hours applies to all employment relationships governed by the Labour Code, regardless of the sector, the size of the undertaking, or whether the employee performs work remotely or at the employer's premises.

The Labour Code further strengthens the right to disconnect by establishing an express anti-retaliation guarantee. Under this provision, any less favourable treatment of an employee (particularly in matters relating to working conditions and career progression) on the grounds that the employee has exercised the right to rest periods, constitutes discriminatory action for the purposes of Article 25 of the Labour Code. 

This provision is of considerable practical significance, as it ensures that employees are not penalised, directly or indirectly, for declining to respond to work-related communications outside their normal working hours. 

A distinctive feature of the Portuguese regime is the classification of any breach of the employer's duty as a serious administrative offence (contraordenação grave), entailing the payment of fines. This means that employers who contact employees outside their normal working hours without justification may be subject to administrative fines imposed by the Autoridade para as Condições do Trabalho (ACT - the Authority for Working Conditions).

Portugal's legal framework on the right to disconnect represents a robust and comprehensive approach to safeguarding employees' rest time and work–life balance in the digital age. By enshrining a general statutory duty of abstention in the Labour Code, reinforced by meaningful administrative sanctions for non-compliance, Portuguese law has provided employees with a clear and enforceable right that operates as a minimum standard across all sectors and forms of work. 

As digitalisation continues to blur the boundaries between professional and personal life, the Portuguese model offers a significant example of how legislation can be deployed to protect employees. 

AUTHORS

Ana Rita do Carmo started working with Paramount Legal in 2022, advising clients mainly in the areas of Employment Law and Corporate Law. She has been registered as a lawyer with the Bar Association since 2019.

Rita advises several national and international clients, essentially in respect of individual employment relationships. She provides day-to-day legal advice to human resources departments, as well as assistance with hiring, disciplinary procedures and individual and collective dismissals. Rita has also participated in several legal due diligence processes.

She also provides support in the areas of Personal Data Protection.

Rita has a Master's degree in Legal-Forensic Sciences from the Universidade Católica Portuguesa, having presented her master's thesis on “The power of computer control in the employment relationship”.

Valentina Messana is an associate at Lexellent, providing assistance, both in and out of court, concerning issues related to personnel management and, in particular, concerning establishing, regulating and terminating employment and self-employment relationships.

She attended the “Luca Boneschi” Advanced Education Institute in Labour, Trade Union and Social Security Law.

She contributes to the magazine “Il Quotidiano Giuridico”, for which she publishes articles discussing labour law rulings.

She also participates in ELLINT Next, a working group within ELLINT, an international organization of law firms specializing in employment law.