Rules for business premises in Spain
Right to disconnect (desconexión digital)
The right to disconnect (desconexión digital) is an employee's right not to be contacted by email, phone or messaging outside working time, so that their rest, leave, holidays and privacy are respected. It is recognised by art. 88 of the LOPDGDD and art. 20 bis of Spain's Workers' Statute.
Also known asdesconexión digital · digital disconnection · right to switch off · disconnection policy
What the law says
Organic Act 3/2018 (LOPDGDD), Spain's data protection and digital rights act, gives private and public employees the right to digital disconnection “outside the working time established by law or by collective agreement” (art. 88.1). How it is exercised is decided by the collective agreement or, failing that, by an agreement between the employer and the workers' representatives (art. 88.2), and the employer, after hearing those representatives, draws up an internal policy that includes training in the sensible use of technology (art. 88.3). The Workers' Statute includes it in art. 20 bis. Neither of them mentions WhatsApp, bans messages outside working hours or sets specific times, and the policy has no headcount threshold.
And work WhatsApp groups
What the AEPD, the Spanish data protection authority, has penalised is not a failure to disconnect but using a personal number without a legal basis. In case EXP202404627, a sheltered employment centre added a call-centre worker's private mobile to a work group and messaged him outside his hours; the proceedings were brought under art. 6.1 of the GDPR. In the AEPD's view, an employee's consent is not a valid basis, given the imbalance in the employment relationship, and legitimate interest requires weighing up and justifying that the personal number is necessary. It also penalised an owners' community whose committee members added a contractor's cleaner to a group with no legal basis (EXP202202616).
An example: the manager of a shop sends the rota at eleven on a Sunday night to the staff group, which uses everyone's personal mobile numbers. There are two questions here: whether that time respects the disconnection policy, and whether the company can justify using those numbers.
Worth knowing
Disconnection and data protection overlap, but they are not the same thing. The first is an employment right with its own internal policy; the second decides whether you may use someone's private phone. No rule bans a work WhatsApp group, and none authorises one without further thought. The two ways of collecting reports are compared in WhatsApp group or incident manager.
Sources
Related terms
- GDPRThe GDPR is Regulation (EU) 2016/679, the EU rule that governs the processing of personal data. It has applied directly since 25 May 2018, and in Spain the LOPDGDD completes it. It binds a colegio mayor, a private student residence and a coliving in exactly the same way.
- Occupational risk prevention planThe occupational risk prevention plan is the document through which a Spanish employer builds health and safety into how it is run: who does what, with which procedures and with what resources. Art. 16 of Ley 31/1995 requires it from the first employee, and it rests on the risk assessment and prevention planning.