The Madrid High Court of Justice ruled on 17 July 2023 that Employees who have agreed to receive an availability bonus with the Company are not entitled to digital disconnection.

Specifically, the judgment is issued in a case in which employees working for a digital services company to which the II Convenio Colectivo de la Industria de Producción Audiovisual [2nd Collective Agreement of the Audiovisual Production Industry] applies, received an availability bonus under Article 22 of the Agreement. This provision specifically stated that with the aforementioned supplement “it is understood that both the fact in itself of availability and the higher dedication and working hours are remunerated”.

Thus, Article 88 of Organic Law 3/2018 of 5 December on the Protection of Personal Data and the guarantee of digital rights and Article 20 bis of the Workers’ Statute have no effect when an Employee receives the availability bonus although the provisions relating to minimum notice and other guarantees established in the collective bargaining agreement must be complied with.

Therefore, if an Employee agrees to receive an availability bonus, the Company has the power to make changes to their working day, even if this involves their rest periods. However, it is important to review the provisions contained in the applicable collective bargaining agreement and, in the absence of a collective bargaining agreement, it is also important to review what has been established in the company policy and in the employees’ employment contracts.

Juan Carlos Lombardia
Employment Area