Background

Although Luxembourg did not have a statutory "right to disconnect," the concept is not new, and this right was indirectly regulated through compliance with the protective rules for employees in terms of working hours and a general obligation to ensure the health and safety of all employees.

In 2018, the Luxembourg Chamber of Deputies received a petition aimed at introducing the right to disconnect. In a 2019 decision, the Court of Appeal of Luxembourg ruled that an employee being on holidays had the right to disconnect from work, and had the right not be disturbed by their superior during their leave (CA, 3rd Chamber, 2 May 2019, n° 45230 of the docket).

Further, the 2020 Convention on remote working provides in Article 10 that the employer shall ensure that the exceptional nature of overtime is also strictly observed for teleworkers and any provision on the right to disconnect that applies to employees working from the employer's premises shall apply to employees working remotely.

The New Law creates a new Section 8 (composed of Articles L.312-9 and L.312-10) in Book III, Title I, Chapter II of the Luxembourg Labor Code, titled "Respect for the right to disconnect," and further adds the right to disconnect to the list of subjects that must be covered by collective bargaining.

The purpose of this alert is to outline the key features of the New Law.

Key takeaways

Obligation to implement a "right to disconnect" scheme

Article L. 312-9 of the New Law provides that when employees use numerical tools for professional purposes, a scheme ensuring respect for the "right of disconnection" outside working hours must be implemented at the company or sector level. 

The scheme may be implemented by way of a collective bargaining agreement or a subordinate agreement. In the absence of a collective bargaining agreement or subordinate agreement, the specific regime shall be defined at the level of the company within the framework of competencies of the staff delegation, if any. In this case, the "right to disconnect" scheme is set up once the staff delegation has been informed and consulted, or by mutual agreement with them in companies with at least 150 employees.

There is no provision in the New Law foreseeing the situation of an employer employing less than 15 employees and, hence, companies that do not have a staff delegation.

Content of the scheme

The scheme should be adapted to the specific situation of the company or sector, and must address the following:

• The practical arrangements and technical measures for disconnecting from digital devices.
• Awareness-raising and training measures.
• Compensation arrangements in the event of one-off exceptions from the "right to disconnect".

Breaches of the legal provisions

Article L. 312-10 of the New Law provides for administrative fines ranging from EUR 251 to 25,000 in the event of a breach of the provisions referring to the "right to disconnect." The administrative fines are ordered by the director of the Labor and Mines Inspectorate, who sets out the amount by taking into consideration the circumstances and the seriousness of the breach, as well as the behavior of the author of the breach.

Information and consultation of the staff delegation

The New Law provides amendments to Article L. 414-3 of the Labor Code to add a supplementary point to the list of the employer's obligations within the framework of information and consultation of the staff delegation on the life of the undertaking, which is imposed upon any company employing at least 15 employees. This new amendment refers to the employer's obligation to inform and consult the staff delegation before introducing or amending a scheme regulating the "right to disconnect" outside of working hours.

Co-decision of the employer and the staff delegation in companies employing at least 150 employees

The New Law provides for an amendment to Article L. 414-9 of the Labor Code to add a supplementary point to the list of decisions that must be taken by collective agreement between the employer and the staff delegation in undertakings employing at least 150 employees. Accordingly, the employer is obliged to introduce or amend a scheme on the "right to disconnect" by collective agreement with the staff representatives.

Proposed means that could be available to employers

In the commentaries to the draft law, it is mentioned that an employer can decide to adopt a chart or organize information sessions to make employees more familiar with the importance of disconnection and guide them in relation the use of digital tools and emails.

It is also mentioned that a company may decide to block access to its IT system during certain hourly and weekly slots, or ask employees to leave the digital tools at the company's premises.

Policies on the "right to disconnect" may include clauses on well-being to encourage employees to schedule post-work free activity to create some separation from the end of their workday and the beginning of their personal time. Employees engaging in flexible working arrangements or remote working may be reminded to switch off from work, to monitor their working hours and to take breaks in accordance with applicable provisions on working time. Policies may also recommend, if possible, that employees only check emails or send emails during normal working hours. 

Companies may also provide that where a manager sends communications outside agreed working hours, unless business and operational needs dictate that an immediate response is required, a statement will be attached to an out-of-hours email tempering the expectation of an immediate response.

Companies may also encourage the use of out-of-office emails, such as "My normal working hours are from X to Y. I will respond to you when I am back at work."

In addition, employers may introduce flexible, hybrid or remote working policies that reference the need to switch off but also to balance the needs of the business and the expectations of different employees, depending on the nature of their roles.

For further information on what these developments mean for you or your organization, please get in touch with your usual Baker McKenzie contact.