The right to unavailability in Germany

Flexible working hours are becoming the norm in most companies. For many employees, this blurs the boundaries between work and leisure time. It puts a strain on employees’ health and also presents employers with legal challenges. The discussion surrounding the “right to be unavailable” is becoming more topical than ever with the accelerating flexibilisation and digitalisation of the world of work.

 

Initial situation in Germany

In Germany, neither the Federal Working Hours Act (ArbZG), the Federal Leave Act (BUrlG) nor the Federal Trade Regulations Act (GewO) contain an explicit entitlement for employees to be unavailable. These laws define the legal framework for maximum working hours, rest periods and the ban on working on Sundays and public holidays, ensuring adequate health protection.

But companies can voluntarily agree an effective right to unavailability. This is possible through an individual contract, a corresponding works agreement or a collective labour agreement. It’s logical to find a solution at company level. The pressure of constant availability is generally not due to a legal regulation that stipulates such availability or does not guarantee adequate health protection; it’s often because of structures and internal processes in the company.

Many German companies have very different models for dealing with the right to digital unavailability. Everything from switching off email servers at certain times to deleting incoming emails during holidays. The Federal Ministry of Labour and Social Affairs also recently launched a campaign on unavailability during holidays to ensure that holidays can be used for recreation. But there are no concrete plans for a legal definition as of now.

Until now, banks in particular have looked at the issue of “unavailability” from a different angle: under the heading of “mandatory time away” or “compulsory absence” they ensure employees are unavailable for a certain period of time each year and cannot access servers and emails. The idea behind this was originally fraud prevention – now HR departments often use it to attract applicants.

 

Labour law challenges in connection with permanent availability

For many German companies, the introduction of an unavailability law is not only an opportunity to promote the health of their employees, but also offers the option of circumventing the extensive challenges relating to the constant availability of employees under German law.

Employers must ask themselves:

• Can I oblige my employees to provide their private mobile phone number or email address?
• Is it even possible to impose an effective obligation to read and reply to work-related messages in their free time?
• What are the legal implications of reading and replying to work messages during free time or while on holiday?

There are no clear answers to any of these questions under German law. As is so often the case, it depends on the individual case. It remains to be seen how supreme court rulings on this topic will develop in the future.

 

Situation in other European countries

Compared to the legal situation in Germany, other European countries are way ahead. France, Belgium, Italy and Spain, for example, have already introduced legal requirements and guidelines regarding the restriction of employees’ permanent availability. For the most part, employers in these countries have to negotiate how a right to unavailability will be implemented with the respective employee representatives. Even if the outcome of these negotiations is often not specified, it’s clear that employers are at least obliged to deal intensively and in detail with the right to be unavailable.

Implementing the right to unavailability has also been discussed at a European level since 2021. But a legislative own-initiative report by the European Parliament has not yet been followed by any concrete implementation plans.

 

Practical note

Regulating the issue of separating work and leisure time not only offers health benefits for a company’s employees, it also provides a legally secure solution to existing labour law problems. It remains to be seen when and in what form the right to unavailability will be recognised at a legal level in Germany, but it’s already clear that this topic will become increasingly relevant in the future.