Abstract
This article argues that formal reductions in statutory or collectively agreed working hours may be ineffective without corresponding reductions in workload and robust safeguards against work encroaching onto non-working time. Technological developments and the expansion of telework have intensified the risks entailed by permanent availability, as well as increasing work intensity and informal extensions of working time. This article shows how existing working time legislation, particularly the EU Working Time Directive and its interpretation by the Court of Justice of the EU, may be insufficient to address these challenges. It critically examines the limits of current legal frameworks and evaluates the emergence of a right to disconnect at national and European levels, contending that clear definition and effective implementation of such a right are essential to safeguard meaningful working time reduction.
Introduction
Reducing people’s working time is important because it enables them to devote more time to caring, to communal or voluntary work, or simply to leisure activities. In addition, working time reduction is a key element of any policy directed towards realising a more sustainable type of economy focused on meeting human needs while respecting planetary boundaries, instead of merely pursuing economic growth (Zekić, 2024: 64). In fact, most existing post-growth strategies include measures directed towards or resulting in working time reduction (for example, Benanav, 2020: 86; Hickel, 2021: 197). However, reducing the maximum daily or weekly working hours in collective agreements or legislation – however advisable, but also difficult it may be – will probably not have the desired effects if it is not accompanied by a reduction of work volume assigned to individual workers and a right to disconnect from work outside working hours.
Technological progress has made it possible for many workers to perform their work outside the traditional workplace and hours. Work has for many become more flexible; for example, it can be done at home or even from abroad. The COVID-19 pandemic only accelerated the shift to teleworking (Pucheta and Ribeiro Costa, 2022: 968). Being able to work ‘anywhere and anytime’ can have clear advantages, but it can also result in working more hours than one is contractually obliged to (Chung, 2022), especially when the (perceived) workload is high. Moreover, technological devices can increase the intensity of work during working hours (Bencsik and Juhász, 2023: 44), resulting in a heavier workload because workers need to process more data and are often expected to communicate with clients and colleagues instantly. For example, mobile instant messaging can foster collaboration, teamwork and productivity (Wang and Hu, 2023), but instant communication can also fuel the expectation that workers be always accessible and should not take too long to respond. Continuous notifications on mobile phones and laptops of new incoming messages can cause a sense of urgency and a need for immediate response (Blabst and Diefenbach, 2017). Workers may feel they are constantly connected to and available for work because employers, clients and co-workers can contact them through digital devices at any time.
Workers who benefit from reduced working hours are not free from the risks the digital era poses in terms of permanent availability and continuous work-related communication. Some EU Member States have taken steps to set rules on workers’ availability outside regular working hours and they have legislated a right to disconnect (also referred to as ‘R2D’). However, the need for an explicit right to disconnect in addition to existing working time laws is still very much debated. Many assume that existing working time laws, especially in the Member States of the European Union, are sufficient to protect workers from excessive working hours.
This article will show, first, why relying on existing working time laws may not be enough to protect workers from formal and informal extensions of working time. The complications and real impact of existing working time laws – in particular the EU Working Time Directive, the accompanying case-law and interpretations by the Court of Justice of the EU (CJEU) – are shown in Sections 2 and 3. In Section 4 the emergence of a right to disconnect at national and possibly European level is discussed. Section 5 concludes. Indeed, a right to disconnect can be an important tool in addressing workers’ permanent availability and can prevent the undermining of working time reductions by informal extensions of (shortened) working time, but in order to be an effective tool, it needs to be properly defined and implemented.
Working time and rest time according to existing EU regulations
Setting limitations on working time is among the oldest components of (international) labour law. All workers need time to rest and to devote themselves to their private lives, thus they need reasonable limits on working hours and periodic holidays with pay. This has indeed been recognised as a human right and included in several human rights instruments, including, among others, various Conventions and Recommendations of the International Labour Organization (ILO), the European Social Charter (ESC), and the Universal Declaration of Human Rights (UDHR). Article 31 of the Charter of the Fundamental Rights of the European Union recognises the right of every worker to working conditions that respect their health, safety and dignity, including the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. In addition, the EU has several detailed regulations on working time for specific sectors, such as road transport (for example, Regulation 561/2006). The EU Working Time Directive (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), which sets minimum safety and health requirements for the organisation of working time, can be seen as the most important piece of legislation in this area because it applies in principle to all workers in all sectors of the economy, both public and private, except for certain workers who have their own detailed requirements. In addition, a variety of derogations and options are available (Articles 17–22 Working Time Directive).
It appears from these legal instruments that the protection of workers’ health and safety is the most important reason for limiting working time. Indeed, the protection of workers’ health and safety is the main objective of the Working Time Directive. It stresses, in particular, that structural overtime or frequent night work, with related lack of recovery time, threaten workers’ health and safety. However, it is not only the health and safety of workers that is jeopardised; the health and safety of members of the public may also come into danger if workers become over-tired, for example, in traffic. Therefore, in many EU Member States working time regulation is part of public labour law, accompanied by both public and private enforcement. This is reflected in recital 4 of the Working Time Directive, stating that the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.
What is less apparent from the legal texts is the fact that there are other motives for limiting working time besides health and safety. Historically, a second and arguably equally important reason for limiting working time has been to secure enough (free) time for workers to devote themselves to other pursuits than paid labour. Although health and safety concerns were always voiced, another rationale has always been to ensure adequate non-work – or ‘leisure’ – time for workers (Lee et al., 2007: 9). For example, when the right to paid vacation was officially recognised in the Dutch Civil Code in 1966 in order that this right, which was already included in many sectoral and company-level collective agreements, would cover all employees, the government justified the new statutory legislation by arguing that leisure time opens the way to other elements of prosperity. Full enjoyment of the prosperity a society has to offer depends on the availability of leisure time (Pennings, 2025: 11).
Besides these two ‘traditional’ reasons for limiting working time, more recently, working time limitation has been recognised in many countries as making a valuable contribution to improvements in work-life balance. It is a crucial means by which workers may combine employment with their private responsibilities. Consequently, it can help in the promotion of gender equality. Finally, working time regulation can be used within the framework of labour market policy, for example, in redistribution of employment and prevention of unemployment (Popma and Roozendaal, 2021: 366).
The current EU Working Time Directive of 2003 is a modern type of legislation that lays down the main principles of working time for the whole EU, while offering ample flexibility for Member States, sectors and companies, and considerably simplifying the former regulatory framework. However, the Working Time Directive can initially still seem rather complicated because it entails several fairly precise legal norms. Nowak succeeded in summarising its main material scope as follows (Nowak, 2018: 120): ‘The Working Time Directive prescribes: minimum daily rest periods of 11 hours; breaks when working days are longer than six hours, the details of which are left to collective agreements; a weekly rest period of 24 uninterrupted hours; weekly working hours of not more than 48 hours; annual leave of at least four weeks; and night work to be no longer than an average of eight hours in a 24 hour period.’ To this very concise summary of the core of the Working Time Directive must be added that the framework of the substantive norms is considerably complicated by the previously mentioned wide range of derogations and options (Articles 17–22 Working Time Directive). Article 17 is particularly important as it offers the possibility for Member States to – under certain conditions – derogate from the main principles of the Directive for ‘persons with autonomous decision-taking powers’. For our purpose, however, it is important to note that the Working Time Directive neither defines nor sets limits on overtime work. The maximum number of working hours – on average, 48 hours per week with possible derogations – is supposed to include any possible overtime.
In addition, it is important to emphasise that, despite the name, the Working Time Directive is as much concerned with working time as it is with non-working time, referred to in the Directive as ‘rest periods’. The concepts of working time and rest periods are connected, but mutually exclusive. The Working Time Directive defines ‘working time’ as ‘any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice’ (Article 2(1)), while ‘rest period’ is defined as ‘any period which is not working time’ (Article 2(2)). The fact that there is no intermediate category is very important, because the Court of Justice of the EU (hereafter: CJEU) is compelled to qualify any period in a worker’s life either as working time or resting time. In addition, this is often the main reason why legal scholars sometimes argue that there is no need to introduce a new right to disconnect: the fact that there is no intermediary category implies that everything outside the agreed (weekly or monthly) working hours must qualify as resting time (for example, Kártyás, 2025). In the words of Collins (2025: 469–470): ‘Unless employers have bargained for the right to be able to communicate outside working hours, workers already have the right to disconnect.’
Contemporary complications in the enforcement of working time laws
Work and availability outside normal or agreed working hours
In practice, it can be difficult to distinguish between working time and non-working time. An increasing number of workers are free to organise their working time as they see fit as long as they finish the assigned tasks on time and in a satisfactory manner (Huybrechts, 2023: 570–587). And it is not only remote workers or so-called ‘autonomous workers’ – that is, persons with autonomous decision-making powers who may possibly fall under the aforementioned Article-17 exception to the Directive – who are affected by digital technology and whose professional and private lives are becoming blurred (see for example, Chung, 2022). When we are able to work ‘anytime and anywhere’, the question arises of exactly when we are working. This is particularly relevant for periods outside agreed working hours. Because of technological progress, work-related communication can reach us very easily at any time, also outside normal working hours. Indeed, it is very easy – and for an increasing number of workers a reality – to read emails from clients over the weekend, to read text messages from colleagues in group chats in the evening on the mobile phone, or read work-related literature or listen to a work-related podcast when on holiday, to name a few examples. Even if we do not actively act on these work-related communications – we wait until Monday to answer emails from clients, refrain from actively engaging in group chats with colleagues in the evening, and only listen to the work-related podcast while hiking – work has nevertheless entered our minds during our free time. Flexible working can make workers think about work when not at work, which can lead to mental encroachment (Chung, 2022), because they are contemplating work-related problems. This thinking about work outside working hours has, of course, always been ‘part of the job’ for some workers, but it is becoming a reality for many workers now. In a survey performed by Eurofound in 2023, over 80 per cent of workers surveyed reported receiving work-related communications outside their contractual working hours during a typical working week (Eurofound, 2023).
An increasing number of researchers warn of hyperconnection (Borges, 2023: 251), a form of constant connectivity with employer, colleagues or clients. Another term often used in research is technostress, which refers to information overload that makes workers partially or completely unable to cope with the difficulties and challenges caused by IT (Ragu-Nathan et al., 2008). Researchers from very different domains, such as computer science, psychology, sociology, management and epidemiology, are studying technostress, and even though many more (longitudinal) studies are needed in order to allow for a proper risk assessment of the ubiquitous digital technologies at work and in other life domains, research to date suggests that certain types of technostress at work are related to poor mental health (Dragano and Lunau, 2020). In terms of the effects on worker well-being, one of the main problems is in the area of work-life balance (Bencsik and Juhász, 2023). Borges mentions several significant ethical, legal and employment related challenges connected to hyperconnection, including threats to the right to privacy posed by technology-enabled control and surveillance through software and AI tools; remote real-time monitoring and time-tracking of work; severe deleterious impacts on worker health and on physical, psychological, and mental well-being, including stress and burnout, isolation, emotional exhaustion and anxiety. Furthermore, there can be negative consequences for gender equality because of its disproportionate impact on workers with caring responsibilities, who still tend to be women. Hyperconnection to work only increases the already existing burden on female workers to combine work with family life. Lastly, decreasing solidarity and impoverishment of the collective dimension of work have also been mentioned in the literature as negative effects of telework (Pucheta and Ribeiro Costa, 2022: 968), which can have serious effects on workers’ ability to organise.
Despite this ‘freedom’ to work independently of time and place, some workers can end up performing excessive hours when the workload is so heavy that the work cannot be finished within the contracted hours. There are indications that flexible working frequently leads to longer working hours, rather than shorter ones. The aforementioned Eurofound study of 2023 showed that workers who regularly work remotely using information and communication technologies are more likely to work longer than is contractually required (Eurofound, 2023). Teleworkers are twice as likely to exceed the 48-hour working time limit than workers who are on-site.
Even when workers are not formally obliged by the employer to take up work outside normal working hours, many apparently feel the pressure to continue working above the contracted working hours. This (perceived) obligation to work more hours does not have to be explicit; it often follows implicitly. This can be because of the high workload, an always-on culture in the company or sector, the need to secure a permanent position, and many other reasons. Besides actually working more hours than contractually required, we may presume that even more workers experience an implicit obligation to be available for work-related communications outside normal working hours. In the words of Huybrechts: ‘The omnipresent virtual office facilitates permanent connectivity’ (Huybrechts, 2023: 571). Even when not resulting in excessive working hours, this permanent connectivity to work can already have a negative effect on the ability to truly rest during ‘free’ time.
Especially so-called atypical or flexible workers, such as fixed-term, (involuntary) part-time or temporary agency workers, who have less job security than so-called permanent workers, can feel the pressure to respond to calls and keep working well after working hours. They may be reluctant to disconnect if this may be perceived as exhibiting a lack of enthusiasm or ambition. Presumably, these workers hope to be offered a contract with more certainty, so that disconnecting might have negative consequences for their careers. In that way, there is a certain relationship between working time regulation and the regulation of flexible forms of employment contract (Popma and Roozendaal, 2021: 366).
One might expect that workers are already sufficiently protected from permanent availability by the existing working time laws. As already explained, the dichotomy between working time and rest time implies that everything outside the agreed (weekly or monthly) working hours must count as rest time. The problem, however, is that the law fails to capture possible implicit obligations to stay connected and available through digital devices (also see Zekić, 2026). The dichotomy between working time and rest time can, to some degree, help workers who have an explicit obligation to remain at the employer’s disposal for certain periods of time and to resume work if called upon. The CJEU has issued several rulings on so-called stand-by or on-call shifts. These rulings are interesting for their binary approach to time. The central question in the rulings is, should periods of time during which workers are not performing their regular duties – and so are not ‘working’ in the strict sense – but still need to be available, in the sense of contactable and ready to undertake duties (Mitrus, 2023: 47) count as working time or as rest time? Even though the number of such on-call workers with an explicit obligation to remain available is smaller than that of workers with only an implicit obligation, the rulings on on-call workers – to be explained below – provide important lessons in relation to the latter.
Explicit obligations to be available to the employer
Broadly speaking, explicit on-call shifts can be divided into two categories. First, there are shifts during which workers are required to be present at the place determined by the employer and to be available to provide their services immediately in case of need. Hospitals and care facilities are good examples of workplaces that have designated areas in which workers on stand-by can rest – sometimes also sleep – until they are called on to resume their duties. Second, there are stand-by shifts that do not require the worker to be present at a certain place. The worker can choose where to stay, for example, at home, but they still need to remain at the employer’s disposal to resume work when needed.
The CJEU has qualified the first category of shifts as, in principle, working time. 1 When on-call workers are obliged to be present at a place designated by the employer, they are separated from their family and social environment and they have little freedom to manage the time during which their professional services are not required. That is why the Court ruled the whole on-call shift – including ‘inactive’ or ‘waiting’ time – to be working time. These rulings had a substantial effect on on-call shifts, notably for doctors and nurses in many European countries. However, an important nuance was added approximately 20 years later: if the workplace includes or is indistinguishable from the worker’s residence, the mere fact that, during a given period of stand-by time, the worker is required to remain at their workplace in order to be able to resume work upon call, does not suffice for that period to be classified as working time. 2 In the case Radiotelevizija Slovenija, the worker was able to stay in ‘service accommodations’ made available by the employer, which were located in television transmission centres on top of Slovenian mountains, far from inhabited areas with few recreational opportunities in the immediate vicinity. Here, the CJEU did not apply its earlier line of reasoning, because the employer had made accommodations available and, according to the CJEU, the worker was not constrained in the same way when it comes to pursuing their own private interests, as for example on-call doctors in hospitals were. Instead, to determine whether the waiting period should qualify as working time, we must look at the criteria developed in Matzak and subsequent case-law, which was developed for the second category of stand-by shifts.
The Matzak ruling from 2018 was a landmark judgment in which the CJEU ruled that stand-by shifts under the second category can also qualify as working time. 3 Mr Matzak was a fireman who was permitted to remain at home during on-call duty, but who nevertheless had to remain available to the employer and capable of reaching his workplace within eight minutes of a call. The Court looked solely at the formal obligations that follow from stand-by duty, namely constraints imposed on the worker by the law, a collective agreement or the employer. According to the CJEU, these obligations were such ‘as to objectively limit the opportunities which a worker in Mr Matzak’s circumstances has to devote himself to his personal and social interests’. In ensuing case-law, the CJEU developed this into a test for distinguishing working time from rest time: when stand-by duty entails obligations of such a nature as to have an ‘objective and very significant impact’ on a worker’s ability to devote themselves to their personal and social interests, then that stand-by duty shall be treated in its entirety as working time. Conversely, when stand-by duties ‘do not reach such a level of intensity’ and they allow workers to manage their own time and pursue their own interests ‘without major constraints’, only the time linked to the provision of work actually carried out during that period constitutes working time. 4
It is ultimately for the national courts to determine whether a stand-by period should be classified as working time or rest time using the test developed by the CJEU. They need to look at the time period available to a worker to return to their professional activities, starting from the moment at which they receive the call (in short, response time), coupled with the average frequency of interventions (or call-outs) that the worker is actually called upon to undertake over the course of the period. Later, in the Dopravní case, the Court added that the predictability of interventions is also relevant, noting that the unforeseeable nature of possible interruptions to a rest period is likely to have an additional restrictive effect on a worker’s ability to manage that time freely. The Court added that ‘the resulting uncertainty is liable to put that worker on permanent alert’. 5
Summarising, the test developed by the CJEU boils down to determining the degree to which a worker is free to manage their time freely, looking at the response time, the frequency and the predictability of the calls. The Court has been praised for its comprehensive approach to the stand-by time and for its astuteness. However, the literature has also been critical of this approach, which on the whole leaves much open to question. It is far from clear when the obligations start to have an ‘objective and very significant impact’ on a person’s ability to devote themselves to personal and social interests. The Court’s rulings on stand-by time create uncertainty and allow for differences between Member States (Zahn, 2021: 124). Indeed, it seems that there will be many more proceedings in which courts test where the boundaries of this ‘objective and very significant impact’ criterion lie.
It is important to add that when stand-by duty is indeed classified as rest time, this does not mean that there are no obligations on the employer. On the contrary, the CJEU emphasises that Directive 89/391 – the so-called Framework Directive for Occupational Safety and Health (OSH) – still applies in full. Stand-by shifts, even when they do not qualify as working time, are part of the working environment in a broad sense. Hence, the employer remains obliged to evaluate and prevent all risks to workers’ safety and health. This includes certain psychosocial risks, such as stress and burnout. The Court warns that where such stand-by duties continue ‘without a break, over long periods or where they occur at very frequent intervals, such that they recurrently place a psychological burden, even of a low intensity, on the worker, it may in practice become very difficult for the latter to withdraw fully from his or her working environment for a sufficient number of consecutive hours, so as to permit him or her to neutralise the effects of work on his or her safety or health’. 6 ‘It follows that employers cannot establish stand-by periods that are so long or so frequent that they constitute a risk to the safety or health of workers,’ the Court warns, irrespective of whether those periods are classified as ‘rest periods’ within the meaning of the Working Time Directive. 7 Indeed, the OSH Directive already contains an obligation on employers to carry out a risk assessment at the workplace, taking psychosocial factors into account. However, research shows that in practice these risk assessments tend to have serious shortcomings (Beck and Lenhardt, 2019). They rarely manage a thorough analysis of the possible effects of hyperconnection.
We can conclude from this brief overview of the case-law that there is no prima facie presumption that a stand-by period should be classified as either working time or rest time (Mitrus, 2023: 45). A period in which a worker is not working, but under an obligation to be available to resume work in case they are needed, can still count as rest time as long as those obligations are not such as to have an ‘objective and very significant impact’ on the worker’s ability to devote themselves to their personal and social interests. Thus for daily and weekly rest periods, the Court accepts the presence of employment obligations as long as they are ‘low intensity’. However, employers cannot establish periods of stand-by time that are so long or so frequent that they constitute a risk to workers’ safety or health. Arguably, such low-intensity stand-by times should be regulated by Member States (if they are not already) in order to protect the workers from psychosocial risks which can endanger their safety and health.
Implicit obligations to remain available to the employer
The case-law discussed above (i) shows that the CJEU accepts explicit low-intensity obligations during periods of rest, and (ii) at the same time warns that employers still have obligations to evaluate and prevent risks to the safety and health of workers. When the frequency of calls is not too high and the workers are given ample time to respond – for example, one hour, as was the case in Radiotelevizija Slovenija – it is safe to say that, according to the CJEU, such time can count as rest time, even though the workers are obliged to be available for calls outside their normal working hours. For our purposes, an important conclusion is that based on the EU Working Time Directive and its case-law, rest time for workers does not necessarily entail a right not to be available to the employer or simply to be unreachable. The legal dichotomy between working time and rest time is in fact being eroded (Bazzani, 2025: 114; Zekić, 2026: 221).
The importance of the case-law on stand-by time presumably goes beyond the traditional stand-by shifts as normally regulated in individual or collective labour agreements, for example, for medical personnel or firefighters. Even though the specific details of every instance of stand-by duty the CJEU has ruled on are different, none of the rulings can be said to be confined to traditional, pre-agreed stand-by or on-call duties. Nowhere does the CJEU define stand-by time; instead, it simply looks at the obligations that are imposed on the employee.
This brings us to the important question of how the Court of Justice would rule on a case based on only an implicit obligation to be available for work. As we have seen, it can already be quite difficult to determine whether a period outside normal working hours should be qualified as working time or rest time when we are dealing with pre-agreed on-call or stand-by shifts in which the worker is formally obliged to be reachable and available to the employer. The CJEU has not yet ruled on a case with an implicit obligation of this kind. However, there has been one case that may be interesting in this regard, because its facts involved a mix of obligations to be available for (urgent) calls, but also ample freedom to manage one’s own time.
The case Dublin City Council is – again – about a (retained) firefighter who was permitted to carry out activity on his own account as a taxi driver provided that his taxi job did not exceed 48 hours per week, on average. 8 This worker was in fact combining two jobs. For his job as a firefighter, he was under the obligation to participate in 75 per cent of the relevant firefighting interventions. He therefore could choose not to respond to some calls, as long as he acted on three out of four of them. When he received an emergency call, he had to try to reach the fire station within five minutes and, in any event, to observe a maximum turnout time of 10 minutes. In other words, the working arrangement was one of permanent availability in which the worker was obliged to respond to the majority of calls, but not all of them.
The upshot of the Court’s ruling in this case was that inactive time in this case was not qualified as working time, but instead as rest time. The Court emphasised that the worker was permitted by the employer to carry out another professional activity during that time. The constraints imposed on the said worker during that period were not to be of such a nature as to constrain ‘objectively and very significantly’ the worker’s ability to freely manage the time during which his services as a retained firefighter were not required.
It is thus safe to state that when there are no explicit obligations to be available and to respond to calls by resuming one’s duties, the CJEU will classify time spent at home as rest time, even though the worker might be, due to constant connectivity, permanently reachable by and available to the employer, and even though that worker might be working regularly outside normal working hours. The employer is still obliged, however, in line with the occupational safety and health laws, to evaluate and prevent all risks to workers’ safety and health, including psychosocial risks. But there is even less evidence that these OSH obligations are sufficient to prevent workers from being subject to implicit obligations to be permanently available or that they include a right to disconnect.
A right to disconnect taking shape
Slowly, consensus is growing on the problematic blurring of working and private life. With the use of digital devices, work can very easily extend into private life and it is increasingly being recognised that this may pose a problem for workers. Many workers feel the pressure of keeping up with the stream of work-related communication. Workers may fear that ‘if they are not up to date, they will miss out, fail to impress their bosses, or be regarded as lazy and not performing their jobs satisfactorily’ (Collins, 2025: 475). Many employers can conveniently remain silent about expectations of prompt responses to messages, leaving this portion of work done outside normal working hours uncompensated. Such workers are then not expressly on stand-by, like workers in, for example, care work, security, hospitals and other essential public services, but they are subject to an implicit obligation to stay connected and available for additional work. It is becoming increasingly clear that the existing legal framework fails to protect workers from permanent availability.
Some EU Member States have taken steps to set rules on the availability of workers outside regular working hours. France was one of the first countries to implement the right to disconnect, in 2016 (later adopted in Article 2242-17 (7) of the Code du Travail). It does not, however, define the content of the right. Rather, it requires annual negotiations between employers and employees to determine limits between work and personal lives. If no agreement is reached, employers must draw up a uniliteral charter after consulting with the works council. Belgium and Spain have approaches similar to that of France, requiring negotiations and fallback arrangements. Belgium introduced new legislation in 2022 to strengthen the right to disconnect, which resembles the French approach in the sense that it requires implementation through a collective agreement or a uniliteral charter (arbeidsreglement). These agreements must include the practical terms and conditions under which employees should exercise their right not to be available outside working hours. In addition, there should be guidelines for the use of digital tools, with a view to safeguarding the employee’s rest periods, leave, and private and family life. Lastly, training and awareness-raising activities should be provided to employees and managers on the sensible use of digital tools and the risks of excessive connectivity. Italy’s approach differs, applying only to remote work. Rather than through collective bargaining, regulation applies here specifically to employees with ‘smart working’ (lavoro agile) contracts. Such contracts should identify workers’ rest time, as well as measures necessary to ensure disconnection from technical work equipment.
In Portugal, on the contrary, the right to disconnect applies directly without requiring negotiations. As of 2022, the Portuguese regime introduced a new duty on employers to refrain from contacting workers during rest periods (Article 199-A Código do Trabalho). Legal scholars agree that the Portuguese approach goes further than a mere right to disconnect (Lerouge and Pons, 2022: 462; Pucheta and Ribeiro Costa, 2022: 980). The law prescribes that the employer may contact an employee during their rest periods only in situations of force majeure. Furthermore, the new regulation prohibits penalisation (less favourable treatment) of any employee who exercises their right to a rest period and imposes additional norms for remote working, including norms strengthening workers’ right to privacy.
In other European countries the issue of workers’ availability outside working hours is sometimes dealt with in collective agreements. As with most employment rights, collective agreements have played a pioneering role in recognising the right to disconnect (Pucheta and Ribeiro Costa, 2022: 974). Examples include the agreements signed by Volkswagen in Germany dating back to 2012 and the sectoral collective agreement for ‘care of the disabled’, which was the first collective agreement containing such a right in the Netherlands, signed in 2020. 9 While such collective agreements are still rare in the Netherlands, in Germany they are a little more common. Collective agreements entered into by BMW, Daimler, Deutsche Telekom and Evonik have also been mentioned in the literature (Bazzani, 2025: 109; Eurofound, 2021). However, as in the case of the Netherlands, when no legislation on the right to disconnect exists, most workers are left outside the scope of such an explicit right.
At the beginning of 2021, the European Parliament, after consulting experts and stakeholders, adopted a resolution calling on the European Commission to legislate for a right to disconnect. 10 The key message was that currently there is no EU legal framework that directly defines and regulates the right to disconnect, and so the Commission should propose an EU directive that lays down minimum requirements for such a right, as well as conditions to ensure that workers are able to exercise this right effectively. Furthermore, the Commission should regulate the use of existing and new digital tools for work purposes. In essence, the new EU directive should allow employees to disengage from work-related communications and tasks outside their regular working hours without facing negative consequences. The impact of the resolution has been that the EU social partners first attempted to negotiate a legally binding agreement on telework. The idea was to update the existing (since 2002) Autonomous Framework Agreement on Telework and adopt it as a legally binding agreement. The European Commission would then transpose it into a European directive. These negotiations failed, however. After being called to initiate legislative action, the Commissioner for Jobs and Social Rights assured the Parliament in December 2023 that the Commission would follow up the commitments made by President Von der Leyen to legislate on the right to disconnect. After concluding the first-stage consultation of social partners in June 2024, the Commission launched second-stage talks with social partners in the summer of 2025. For the time being, however, the Commission does not seem to be in a hurry to take the next steps. At the time of writing (i.e., January 2026) it is uncertain how much progress the Commission has made with the evaluation of the social partners consultation. No plans are mentioned in the Commission’s 2025 and 2026 work programmes on the right to disconnect, but maybe the issue will be included in the preparation of the Quality Jobs Act.
While the European Trade Union Confederation (ETUC) supports the European Parliament’s request for legislation on a right to disconnect, according to its formal statement there is no need for a right to disconnect to be introduced because such a right already exists. It need only be further described and enforced in the form of an EU directive. The ETUC recalls that the Working Time Directive, Framework Directive 1989/391/EEC on occupational safety and health, as well as collective agreements and individual work contracts together regulate the time during which workers shall be available to their employers. In its formal response, the ETUC states: ‘Beyond this, the employer has no claim to the worker’s time. This results in a right of the worker not to be contacted by his employer during his free time. It is therefore a matter of further clarifying and enforcing this right to disconnect.’ 11 Perhaps unsurprisingly, BusinessEurope articulates in its position paper a clear preference for a non-legislative, decentralised approach to the issues of telework and the right to disconnect. 12 It argues that existing frameworks under the EU Working Time Directive are sufficient and warns that further EU-level regulation risks disincentivising employers from offering telework to their workers. BusinessEurope suggests that efforts should instead focus on improving enforcement rather than introducing new rights.
While an EU directive on the right to disconnect is still very much up in the air and the value of such a right is debated in many EU Member States, several jurisdictions outside the EU have taken up a form of right to disconnect in their legislation. For example, India followed the French example and promulgated the Right to Disconnect Bill in 2018. Chile introduced such a right in 2020, followed by Argentina, Mexico and the Russian Federation in 2021, and Peru, Colombia and Ontario (Canada) in 2022. Australia implemented a right to disconnect in 2024 (Josserand and Boersma, 2024). Hyperconnection is clearly a growing international concern (Lerouge and Pons, 2022: 462). All these heterogeneous solutions to the problem of ‘always-on’ culture reflect differences in the respective industrial relations systems (Bazzani, 2025: 109).
Indeed, there are major differences in the scope of coverage of these regulations and currently the ‘right to disconnect’ can mean different things. It may mean that periodic negotiations between employers and employees are required in order to reach agreement, preferably through collective bargaining, on the rules for contact outside working hours in order to safeguard workers’ private time. Such regulation compels companies to develop an internal policy. Even though such a right is not expressed in ‘strong terms’, introducing such a right to disconnect can help to raise awareness of the risks of permanent availability and the importance of rest time and in making any implicit obligations more explicit. In that way, it can help to ensure that flexible working does not lead to encroachments on rest time and that the rise of flexible working does not lead to a working culture in which workers are expected to work all the time and everywhere. In addition, any collective agreement on availability outside working hours should also include agreements on proper compensation for such availability.
There is certainly a risk in formulating the right to disconnect as a procedural obligation to engage in a dialogue on worker availability outside normal working hours, as the present Dutch legislative proposal does (van der Slot, 2025). Such an obligation to engage in dialogue does not create a tangible standard, and enforcement remains limited to an administrative procedural review without substantive assessment. If there is no collective representation of workers or it is not strong enough, such a procedural obligation is insufficient to safeguard effective legal protection. Moreover, it might even undermine the existing legal framework.
Indeed, if one seeks to address the issue of hyperconnection and its risks to health effectively, it is not sufficient only to recognise the right to disconnect, but ‘to give content to the right’, as Lerouge and Pons (2022) have put it (p. 463). A right to disconnect that goes further than an obligation to implement a policy on availability outside working hours is a worker’s individual right not to engage in any work-related communication other than in extraordinary situations and so simply to switch off. Having an individual right to disconnect can empower workers in enforcing their (working time) rights. The European Law Institute has issued Guiding Principles on Implementing Workers’ Right to Disconnect (Sciarra et al., 2023), including, among other things, protection against adverse treatment and ensuring that compliance with the right to disconnect is enforced by independent competent bodies.
Conclusions
In order to prevent any kind of working time reduction being undermined by an informal extension of shortened working time, workers need be protected from permanent availability. The aim of this article was to describe the EU acquis on the distinction between working time and rest time, while pleading for the introduction of a proper right to disconnect at national and/or EU level in order to help policy-makers and trade unions work out how to support such legislation or develop collective agreements. The central challenge explored in this contribution has been how to prevent the informal extension of reduced working hours, thus undermining working time reduction, especially through implicit expectations of availability outside formal work schedules. By discussing the CJEU case-law on stand-by and on-call shifts – working shifts with explicit obligations to remain available for work – it has been shown that, based on the EU Working Time Directive alone and its case-law, rest time for workers does not necessarily entail a right not to be available to the employer or simply to be offline and unreachable. Existing working time regulation is in itself unable to safeguard workers’ free time. This is enough reason to support legislation on a right to disconnect.
The fundamental problem of how to prevent any kind of working time reduction being undermined by a right to disconnect applies to all workers in the same way. Many work arrangements nowadays are such that employers do not need to formally oblige the worker to be available. Instead, the obligations to remain connected and take up additional work, for example by answering emails or filling in for a colleague, are very often implicit. Precarious workers, such as temporary workers, can in particular be reluctant to ‘switch off’ if the culture within their occupation is to always to be available for work (communication). In a volatile economy in which firms may be operating 24/7, workers feel the pressure to be flexible and available, also in order to secure their employment. This obviously has deleterious effects on their physical, psychological and mental well-being, as well as on their privacy.
We may be tempted to think that the blurring of working time and private life are ‘natural’ consequences of a changing economy, advancing technology and maybe even a changing culture, and thus that regulation cannot help that much. It has been argued that the debate on the right to disconnect is ‘not a technological problem’. For example, screens can be switched off, computers unplugged and phones put in flight mode. But ‘without a right to disconnect culture, we may struggle to find the right work-life balance’ (Eurofound, 2022). Implementing a right to disconnect through collective bargaining can indeed help to change the culture of constant availability for work. However, it is important to stress that the problem of hyperconnectivity is not ‘just’ a cultural problem either. The debate on the right to disconnect goes to the core of power relations, which are central to work relations and labour laws. That debate includes the question of what claims the employer may have on our time.
This contribution has argued that the right to disconnect should be understood as a critical regulatory instrument that can help to ensure the effective implementation of working time reduction and reinforce the practical realisation of its intended benefits. Legislating for a right to disconnect, if it has not been done already, should thus be included in future regulatory and policy efforts at both national and European level as a necessary complement of working time reduction. Such a right should preferably entail positive obligations on the side of the employer, including the obligation to refrain from contacting the worker outside working hours and an individual right to disconnect from any work-related communication. Collective representation by trade unions remains crucial to implementing the right to disconnect.
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.