Beyond the Right to Disconnect: Broadening Perspectives on Working Time Regulation in the Digital Age

1.    Introduction

The blurring of the boundaries between work and private life, irregular schedules, and overconnectivity are hallmarks of modern workplaces. Despite technological advances and long-term reductions in working hours, workers suffer from increasing time pressure and work intensification. In this context, the right to disconnect, understood as the right not to engage in work-related communication outside of working hours, is often proposed as a much-needed solution to ‘permanent availability’. The regulatory initiatives in this regard, including at the EU level, are not without controversy, however. For some, they promise greater legal clarity and more effective enforcement of the Working Time Directive. Others argue that there would be little to no added value in the new regulation, as it would not change the status quo and would fail to address the underlying problems effectively. This blog post revisits the key aspects of this debate from a socio-legal perspective.

Drawing on our recent ETUI working paper, we argue that the right to disconnect needs to be approached through a broader understanding of overconnectivity and its causes. The problem is not simply that digital technologies make workers reachable outside working hours. Permanent availability is also driven by the de-standardisation and unpredictability of working time, excessive workloads, employment insecurity and, increasingly, algorithmic management. A right to disconnect can therefore provide an important safeguard, but cannot on its own address the underlying causes of work spilling into private time. We argue for understanding it as a socio-digital right which should be part of a broader approach to working-time regulation, psychosocial risks and the impact of digital technologies on working conditions.

2.    From working time de-standardisation to work overconnectivity

Working time legislation, including the EU Working Time Directive, has been largely designed around linear, homogeneous and standardised forms of work organisation, performed at the employer’s premises. It is rooted in a traditional conception of working time based on a binary division into paid working time and unpaid personal time. Since the 1990s, however, flexible work organisation, declining job security and technological change have increasingly blurred the temporal boundaries of work. Longer operating hours in service sectors, a workplace culture that rewards availability, digitalisation and global competition have all contributed to work extending beyond the traditional working day.

These phenomena are not marginal; they affect a substantial proportion of the workforce. For example, the analysis of the 2024 European Working Conditions Survey (EWCS) shows that being contacted about work-related matters outside of working hours is a common experience. Those in managerial positions are by far the most exposed: nearly 38% are contacted outside of working hours several times a month or more often, including 5% contacted daily. One in four professionals is contacted outside of working hours at least several times a month, and the same goes for service and sales workers. This overconnectivity goes hand-in-hand with the performance of actual work tasks outside of designated working hours. The EWCS shows that managers and skilled agricultural workers are the most exposed to this risk. Among professionals, nearly 30% work in their free time several times a month and almost 11% do so several times a week. Although less prevalent in other occupations, more than 10% of lower-skilled manual workers and over 20% of technicians and associate professionals regularly report working in their free time.

Workers’ contactability outside working hours lacks a clear legal classification. The closest legal construct to this in-between time of ‘permanent availability’ is standby/on-call time, even though there are substantive differences between these concepts. While standby time refers to the situation when workers must remain available to resume work in case of need, an overconnected worker is, in theory, free to disregard an email or a WhatsApp message received from the employer, even though remaining available for work does not allow a mental and psychological disconnection from it.

Real-life cases of overconnectivity do not always correspond neatly to any legal category. For example, research documents retail workers in Finland in flexible full-time jobs without fixed or guaranteed hours, who had to book shifts as they became available, often at very short notice and at any time of the day or night. This system compelled workers to be constantly connected by checking their phones and being available to book a shift. This perpetual connection to work could not be considered as performance of work tasks nor as standby time in legal terms, but it was necessary for achieving full-time hours and thus income at the end of the month.

Thus, in legal terms, being contacted outside working hours does not automatically mean that a worker’s personal time is constrained to such an extent that it qualifies as remunerated working time. As long as workers remain largely free to pursue personal, family and social activities, this in-between time of ‘constant availability’ will fall under the legal category of unpaid rest time. This renders deviation from standardised working time challenging from a regulatory perspective and is still a largely unresolved issue.

3.    What drives overconnectivity?

Digital hyperconnectivity is often perceived as an individual choice of workers. Checking emails after work tends to be seen as a voluntary decision driven by curiosity, ambition for successful work performance, or addiction to digital devices. Consequently, it is expected that providing workers with the right not to respond to communications outside working hours will effectively deal with the issue. However, the factors that render workers more susceptible to overconnectivity transcend personal choice. The contractual precariousness of work can pressure workers to remain available or perform work beyond paid hours. Characterised by insecure employment, unpredictable schedules, and unstable earnings, precarious jobs often encourage workers to extend their availability as a strategy to reduce risks, demonstrate commitment, or avoid missing paid tasks, hours or shifts outside regular working time. In some cases, even if responsiveness to a certain task allocation is framed as voluntary, it is de facto obligatory. The EWCS data show that workers who report that it is likely or very likely that they may lose their jobs in the next six months are more likely to be contacted outside of working hours, work in their free time to meet work demands, and feel required to work at short notice.

Another push factor driving overconnectivity is simply having too much work to do to manage it within designated working hours. While workload is rarely brought up in the debates on the right to disconnect, there is a strong relationship between overconnectivity and increased work intensity. Extensive and intensive work effort are two interdependent dimensions of labour input. Whereas extensive effort is determined by the duration of working time, intensive effort concerns the pace, density and concentration of work performed within that time. Changes in one dimension frequently affect the other. For example, shortening working hours may be compensated by higher work intensity as workers seek to maintain output, while an increased pace of work may extend working hours as employees require additional time to complete tasks or to reduce effort intensity and cope with fatigue. Yet current working time regulation largely overlooks work intensity. Notably, as clarified by the CJEU in the Dellas and Others judgment, the the intensity of the work performed by workers and their output are not among the characteristic elements of the concept of ‘working time’ under the Working Time Directive.

Establishing whether a worker is expected by the employer to be on standby, or is connecting purely on their own initiative, is crucial for the legal classification of that time as work or rest. The worker’s motives for responding outside working hours - whether ambition, economic pressure, or workload - are irrelevant. As long as it can be proven that the employer has required such availability, it must be considered as working time.

This legal approach does not align well with a sociological understanding of work processes and organisation. A typical situation is when employers offer precarious contracts or little job stability, while assigning high workloads yet without explicitly obliging workers to increase their working hours. Workers extend their availability out of a sense of economic uncertainty, dependency or work pressure, the root of which lies in the organisation of work and employment arrangements. Overconnectivity under these conditions can hardly be regarded as being driven by the worker's own initiative. Thus, while the right to disconnect can tackle the problems resulting from organisational culture, it fails to address other root causes of (apparently) self-imposed ‘constant availability’. Rather, this is a much deeper systemic problem requiring measures related to job security and precarity.

Another driver of overconnectivity is digitalisation. The use of digital tools facilitates sustained connectivity between workers and employers, and enables work at any time and in any location. A recent study shows that people who work with computers are significantly more susceptible to being contacted outside of working hours, working long hours, working in their free time and at short notice. While the role of digitalisation in driving overconnectivity to work is evident, it is crucial to emphasise that this problem is not confined to the ‘digital’ workforce. The already mentioned example of the Finnish retail workers is a case in point: they had to stay connected to the employer’s shift booking system on their own internet-enabled devices, even though such devices do not constitute official work tools. This is an important policy perspective –the future EU regulation should make sure that all workers, not only those in ‘digital’ jobs, are covered by the right to disconnect.

An important aspect of digitalization, which is seldom present in the policy debate on disconnection from work, relates to algorithmic management. There is growing evidence showing that the automation of managerial functions, such as task allocation, scheduling and monitoring, is linked to a significant increase in overconnectivity. Algorithmic systems can incentivise workers to accept tasks during peak demand, often outside standard hours, while some models reward constant responsiveness and penalise disconnection through lower ratings or less favourable shifts. These schemes have been most studied in the platform economy, but are increasingly spreading to other, ‘traditional’ sectors.

4.    The EU legal framework

Even though not directly expressed in the EU framework, the right to disconnect de facto stems from the Working Time Directive (WTD). Working in free time is, legally speaking, nothing but a violation of the right to rest under the WTD. However, the rules in this area are elusive. The WTD entitles workers to a minimum daily rest period of 11 consecutive hours per 24-hour period and to a minimum weekly rest period of at least 24 hours. This leaves 13 hours daily available for work activity, thus much more than a standard 8-hour working day. Moreover, it allows for exceptions regarding daily rest, reference periods and length of night work, when working time duration is not measured and/or predetermined, and when workers can determine it by themselves (Art. 17(1)). This concerns in particular ‘managing executives or other persons with autonomous decision-taking powers’, which can explain why managers are particularly at risk of working in their free time. Following a strict interpretation by the CJEU, workers who enjoy only partial autonomy over their working time are excluded from its scope.

The EU legal framework also provides a set of safeguards to respond to some of the triggers of stress and other psychosocial risks. The Occupational Safety and Health Framework Directive, sets out the general duty of the employer to ensure the safety and health of workers ‘in every aspect related to the work’ (Art. 5). There is no doubt that this also includes ensuring that working time arrangements, workload and work duration do not put workers’ health at risk. The Transparent and Predictable Working Conditions Directive (TPWCD) aims at protecting workers against unpredictability of work, including its working time dimension. In particular, it provides that workers with unpredictable working conditions cannot be required to work unless this takes place within predetermined reference hours and days, and they are informed of a work assignment within a reasonable notice period (Art. 10). If those two requirements are not met, a worker has the right to refuse a work assignment without adverse consequences (Art. 10(2)). It can be said that Art. 10 TPWCD amounts to a form of a right to disconnect for this group of workers. However, the instrument fails to provide meaningful safeguards for all workers exposed to hyperconnectivity, especially given its rather light-touch material scope, limited as it is to rudimentary information rights about essential aspects of working conditions.

Another problem related to excessive connectivity is its high social cost for workers and their families, and the poor work-life balance. The solution to balancing work and non-work obligations tends to be sought in working time flexibility. This is the very idea behind the Work-Life Balance Directive, intended to help workers with caring and parenting responsibilities reconcile family obligations with work, thereby fostering gender equality since doing so is essential for addressing the uneven share of the care burden between men and women. One weakness, however, is a lack of a clear distinction between employer- and worker-oriented flexibility, which lies in who benefits from the arrangement and who holds the decision-making power over working time allocation.

Finally, the current EU legal framework provides some protection against the negative impact of algorithmic management and AI on working time. AI-driven systems setting working time fall under the category of high-risk systems under the Artificial Intelligence Act, which triggers a range of obligations for providers (i.e. companies manufacturing AI systems) and, to a lesser extent, for deployers (i.e. employers). Moreover, under the Platform Work Directive (PWD), automated decision-making and monitoring systems need to meet the transparency, human oversight and human review requirements. Platforms have to evaluate the risks of these systems to workers’ safety and health, assess whether the safeguards in those systems are appropriate and introduce appropriate preventive and protective measures. The PWD bans digital platforms from using automated systems in a way that puts undue pressure on platform workers or otherwise jeopardises their safety and physical and mental health (Art. 12). Accordingly, algorithmic systems that require connectivity outside working hours are prohibited under this provision. In addition, the PWD protects platform workers by forbidding the collection of personal data from someone performing platform work while that person is ‘not offering or performing work’ (Art. 7(1)(c)). In this way, law draws a clear line between working and rest time, even in such a blurred and flexible form of work as platform work.

5.    Regulating the right to disconnect: the way(s) forward

The problem of workers’ overconnectivity is a complex and nuanced one, and persists despite the above-discussed set of legal protections. It concerns a wide group of workers, whether or not they work remotely through digital devices. It has diverse root causes, from fragmentation of work, pervasive precariousness and excessive workload to work culture or self-imposed expectations and ambitions. The progressing ‘dematerialisation’ of workplaces and de-standardisation of working time, along with the spread of algorithmic management and AI systems at work, only exacerbate the issue, underscoring the need for further regulatory intervention.

Even though not directly expressed in the EU framework, the right to disconnect de facto stems from the WTD, and is protected under other pieces of legislation, such as the OSH Framework Directive and TPWDC. In essence, a potential new instrument would not be about introducing the right to refrain from engaging in work-related tasks outside working hours but rather reaffirming it, specifying legal guarantees around it, and ensuring its proper enforcement. The right to disconnect should be perceived not merely as an enforcement measure of the WTD, but as a right of a multidisciplinary nature, intersecting with physical and mental health, the right to work-life balance and privacy, and as a measure to mitigate precarity.

The value and true potential of the right to disconnect lies in its dual nature, as both a social and a digital right, even though it is usually perceived as a social right. On the one hand, it can be seen as a way of fighting digital risks and vulnerabilities, including tech dependency. In the context of digitalisation, this right should be tied to the use of digital tools rather than to a place of work – it is equally important to homeworkers as to those working on employers’ premises. Its reconceptualisation as a digital right could allow for an expansion of its personal scope to the self-employed, who are also exposed to psychosocial risks. On the other hand, the debate should not be limited to connectivity, narrowly understood as a use of connected digital tools. Rather, it should be conceived in a broad sense as a disconnection from work, thus including psychological detachment and a stop to permanent availability, data collection, monitoring and the carrying out of unpaid labour (i.e. those auxiliary tasks necessary to secure or maintain paid work but which are not part of paid tasks).

Finally, apart from ensuring the realisation of a right to disconnect, there is a critical need to address mental health issues at work. A case in point is a potential EU directive on the prevention of work-related psychosocial risks, stress and mental health at work, whose goal would be to address such risks in a more comprehensive manner by establishing binding organisational obligations for employers, such as mandatory psychosocial risk assessments. The right to disconnect should not be taken as a proxy for the wellbeing of workers, as it tackles only one of the manifold issues that affect wellbeing. Unless seen in the context of specific work characteristics and accompanied by other measures, such an initiative represents an overly fragmented approach. The right to disconnect should be a component of the broader regulation addressing psychosocial risks at work and the impact of technology, including algorithmic management and AI, on working conditions. Ensuring that workers can disconnect – both digitally and mentally – is a crucial dimension of a quality job. The inclusion of the right to disconnect in the Quality Jobs initiative, which is currently in its second consultation stage, is a welcome step. Last but certainly not least, collective bargaining is a particularly suitable mechanism to enforce and expand the right to disconnect. Any regulatory initiative can and should stimulate collective bargaining activity on this issue.