Right to Disconnect in Philippine Context

Right to disconnect posts of the Department of Labor and Employment (DOLE) have been making rounds in the Internet last week.

Purportedly, this came from the statement of DOLE Secretary Silvestre H. Bello stating that answering or ignoring texts, emails from employers after working hours is a voluntary engagement of an employee, and they are not obliged to respond or not. The right to disconnect is a choice of an employee.

So, what is the concept of “right to disconnect?”

[Note: The following discussion on foreign version of the right to disconnect principle was formulated after reading several online sources, such as: https://en.wikipedia.org/wiki/Right_to_disconnect#cite_ref-5]

With the rapid development in communication and information technologies, people have never been closer in terms of how easily they can communicate.

The right to disconnect is anchored on human rights principles.

This is about the ability of people to disconnect from work and primarily not to engage in work-related electronic communications. E-mail or electronic messages can be invasive in that it can even be received when employees are already at home or with their family.

The modern working environment has been drastically changed by new communication and information technologies. The line separating work life and home life is almost gone with the introduction of digital tools and platform in work environment.

While digital tools bring flexibility and freedom to employees they also can eliminate any limitation. The result of high-speed communication channel can  be excessive interference or intrusion into the private lives of employees.

Many countries advocate the right to disconnect from electronic communication after work. European countries primarily have some form of the right to disconnect included in their law. Many large corporations incorporate this in their policy.

As historical background on this movement began in a supreme court decision in France  of a case sometime in 2001. This was decided by the Labour Chamber of the French Supreme Court.

The decision on 2 October 2001 held that the employee is under no obligation either to accept working at home or to bring there his files and working tools. In 2004 the Supreme Court affirmed the decision and holding that the fact that the employee was not reachable on his cell phone beyond working hours should not be considered as misconduct. Further, the employee’s failure to answer his work phone outside of his working hours was not a just cause to terminate him.

The government of France passed the El Khomri law to reform working conditions for French people. In 2016, the French government adopted a labor law that, among other provisions, included a right to disconnect. The legal right refers to employers’ obligation to stop intruding on their employees’ personal and family lives through remote communications like calls and emails.

Under the right to disconnect, employees do not have to take calls or read emails related to work during their time off and will not incur any liability with their employer. Hence, on July 24, 2018, the Petition 1057 called for introduction of the right to disconnect or as it is called in French “Le droit à la déconnexion” in the Labour Law in Luxembourg.

In 2017, Secretary Bello was quoted as saying that he “right to disconnect,” or letting employees disregard work-related communications after office hours without disciplinary action is, technically, a voluntary engagement between employers and their employees.

Bello said that answering or ignoring texts, emails from employers after working hours is a voluntary engagement of an employee, and they are not obliged to respond or not. The right to disconnect is a choice of an employee.

The labor secretary further mentioned of a bill that seeks for no work-related communications after office hours might ease burnout and stress to the employees by drawing a clearer line between work and home.

House Bill 4721 was authored by Quezon City Representative Winston Castelo authored which aims to amend the Labor Code of the Philippines. This bill obliges employers “to establish the hours when employees are not supposed to send or answer work-related e-mails, texts, or calls,” and the conditions and exemptions in line with it, subject to rules provided by the Department of Labor and Employment.

“Employees and employers know that there’s time for connection and so does a time for disconnection. It’s always up for the employees to oblige themselves to work even after office hours,” Bello said.

He also added that “completely disconnecting would be unrealistic for certain jobs, and the employers must be the one to implement a policy in accordance with the standards of the labor code, which will benefit both parties.”

“It’s the employers’ own assessments and evaluations to reduce out-of-hours work. They either implement policy that will prevent their employees to work after office hours or compensate them for extra workload,” Bello added.

With that, is it now mandatory for the company in the Philippines to strictly observe the principles behind the “right to disconnect?” Unlike in France where violation of their version of this law provides a penalty of one year imprisonment, there is no sanction for any violation in Philippine setting.

As stated, there is only a bill at present but there is no law on the matter. Thus, the application of this principle in the country still requires further study and to finally give it a bite a legislative fiat is required.

Notably, management prerogative grants employer to require performance from its employees. This demand may even go beyond the normal hours of work provided he pays overtime where it covers qualified employees.

In fact, Article 89 of the Labor Code provides that any employee may be required by the employer to perform overtime work in any of the following cases:

(a) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive;

(b) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity;

(c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature;

(d) When the work is necessary to prevent loss or damage to perishable goods; and

(e) Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter.

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Failure of the employee to render overtime when required during any of the listed emergencies may cause his valid dismissal from work.

In the case of Realda vs. New Age Graphics, Inc. (G.R. No. 192190, April 25, 2012) the Supreme Court held that for willful disobedience to be a valid cause for dismissal, these two elements must concur: (1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge.

In the Realda case, there is no question that the employer’s order for the employee to render overtime service to meet a production deadline complies with the second requisite. For the Supreme Court, such an order is legal under Article 89 of the Labor Code and the employee’s unexplained refusal to obey is insubordination that merits dismissal from service.