The right to be unavailable outside working hours

On the 9th of February, a debate took place in the Dutch House of Representatives regarding, amongst other things, Labour Party (‘PvdA’) MP Kathmann’s initiative bill on the ‘right to be unavailable’. With this bill, Kathmann intends to amend Section 3 paragraph 2 of the Dutch Working Conditions Act, which obliges employers to pursue a policy aimed at reducing the psychosocial workload of its employees.

1. Where does the call for unavailability outside working hours come from?

Lodewijk Asscher, leader of the PvdA until 2021, posted a message on Facebook in February 2017 called 'Phone off against stress'. In this post, Asscher compares a demanding job to top-class sport: a bit of muscle pain is no big deal, neither is a bit of stress. However, constantly working when can’t actually do it anymore is - like exercising with an injury - dangerous. Over time, workers can suffer burnout and remain ill for a long time. That is why Asscher called for a right to be unavailable to employees after working hours, as enshrined in law in France, for example, since 2017.

As it stands, Dutch law contains no right for employees to be unavailable for work outside working hours. The Working Hours Act only obliges to ensure a minimum (uninterrupted) rest period for youth and adult workers of 12 and 11 hours respectively. However, in some Collective Labour Agreements (CLA), for example the CLA for State Employees, there is a right to be unavailable outside the working pattern. However, this right is not absolute in many cases; (urgent) circumstances may make it necessary for the employee to be available.

2. The initiative bill scrutinized

Kathmann, as initiator of the bill (after the original initiator Gijs van Dijk left parliament in 2022), proposes to amend Section 3 paragraph 2 of the Dutch Working Conditions Act, in the sense that it is added that part of the policy aimed at preventing or reducing psychosocial workload, is that the employer and employee must discuss the employee's availability outside working hours. Reasons for this initiative include several studies, which - broadly speaking - come to a similar conclusion: with the increasing use of mobile devices, specifically also for work purposes, employees experience an increasing degree of pressure from having to be constantly reachable, including outside the work pattern. This fuels burnout symptoms.

3. Criticism on the initiative – does it make good on its promises?

The bill was met with considerable criticism in the aforementioned Parliamentary debate, from both supporters and opponents. Supporters of the bill feel that the proposal does not go far enough. They say, for instance, that no actual right to unavailability is given, but only an obligation to engage in a conversation about out-of-hours availability. Supporters prefer to see this differently. Opponents, on the contrary, say that this effectively makes the bill a wash; the 'right to unavailability' is marketed in a nice way, but this right is not actually mentioned anywhere in the bill.

Other critics of the proposal feel that the link between burnout and being (un)available has not been established and therefore the contribution of this bill to a healthy working environment remains unclear. They prefer to wait for imminent European regulations on the subject.

What many of the parties taking part in this debate did agree on was the (harsh) question of whether legislation is the right way to solve the problem of increased stress caused by being constantly on call. After all, in an increasing number of collective agreements (childcare, care for the disabled, nursing), the right to be unavailable is already enshrined, and what's more, these collective agreements actually include it as a right, rather than an obligation to discuss availability outside working hours. The parties see this as a task for the social partners, who are at the table during CLA negotiations, rather than a task for the legislator.

4. What’s next?

It seems that, for now, there will be no legal obligation for employers to start the conversation and make agreements with employees about (un)availability outside working hours. The support this bill has encountered in the Chamber is simply insufficient for that. There is agreement within the walls of the European Parliament that employees should have the right to be unavailable outside working hours, but it is now up to the European Commission to flesh out this decision further. That, to put it mildly, will be some time coming.

5. In conclusion

Although a mandatory and generally applicable right to unavailability can (for the time being) still be labelled a thing of the future, there is certainly no harm in considering possible agreements on employee unavailability. The obligation for employers to pursue a policy aimed (in part) at preventing, or at least limiting as much as possible, psychosocial workload can be given substance by such agreements. Moreover, especially in view of the current labor market shortage, it can be an attractive employment condition for employees if agreements in this area are clear and enforceable.

Would you like more information on the right to unavailability, or on the existing obligation to have a policy aimed at reducing psychosocial workload? Feel free to call or email us!.

Written by Okke Wijntjes