The advancement of new information and communication technologies, especially with the implementation of smart mobile phones, means that workers can remain constantly connected, even outside the working day. A situation that, although a priori should seem positive, can also lead to certain labor abuses if its remuneration model is not sufficiently clear and whether or not it has a labor availability clause.
Apart from the least, employees will always be available during the period of time for which their working hours are extended, the new model of interconnectivity can lead to a scenario that should be made clear to avoid misunderstandings and be victims of labor exploitation that in many cases can be involuntary. This is specifically about availability outside the working day.
Surely, on more than one occasion you will have received a call or an email from your boss outside the hours of your workday.
In this case, you must be clear about whether or not you are obliged to give an account of these requirements by the company, depending on what the conditions agreed and duly established previously have been.
Whether in the employment contract itself and even through a certain collective agreement, your availability clause,through which you must be accountable for those telephone calls or emails sent to you while you are out of your working day,provided that the agreed conditions are met.
Availability outside the working day
It is important to distinguish between the availability outside the working day and the reliable work done by the employee in this same period of time.
That is, the availability will have to be remunerated as a plus of preservation of a certain way of guard for the company. Through this clause, during the stipulated periods, you will have to combine your free time with sufficient availability to meet any requirement.
In the same way, and apart from the availability bonus contemplated, if you have to perform any effective work during this period of availability, these hours must be contemplated in the mandatory contribution regime as overtime or as rest time in your favor, depending on the agreed conditions.
But they must always be remunerated regardless of the availability supplement mentioned above.
What does the labor availability clause say?
To avoid misunderstandings between the worker and the company, the availability clause must clearly reflect the conditions that will be established between employee and company outside the working hours of the working day.
If the collective agreement does not reflect this extra availability and the employee and the company have not set these conditions in the employment contract, the employee will not be obliged to satisfy the requirements of his boss outside working hours, even if he sometimes wants to do so. motu proprio and in good faith.
In this scenario, the company will also not have the right to file any sanction against the worker if he does not answer the calls or does not answer the emails sent during this time.
In short, the plus of availability is not effective working time nor overtime. It is a figure that attends to the factor of availability in free time, so it must be remunerated, whether or not there has been a requirement.
If there is no availability clause in your collective agreement or contract, can you be sanctioned by the company if it does not respond to your requirements during your free time?
Except in flagrant cases, the answer is no. As mentioned above, you will only be obliged to meet the requirements of the company outside working hours if an availability clause with its corresponding remuneration has been previously agreed. If there is not, the company will not have the power to file any sanction.
Right to digital disconnection
This past January 2017, France was the country that included in its labor reform a legal text in which it requires companies to negotiate with their employees the availability outside working hours.
Although in Spain there is still no regulation in this regard that specifically regulates such a digital disconnection,the Ministry responsible for Employment and Social Security has been studying for a few months to promote a regulation of similar depth to that approved in the neighboring country.
However, and in short, the absence of a specific regulation that regulates such a scenario does not cause any legal vacuum.
The general legislation in Spain and the jurisprudence establishes that no worker is obliged to remain in his job once his working day has been satisfied. Thus, you will not be obliged to answer telephone calls or emails if there is no availability clause that previously regulates such a relationship between employee and company.
