Can companies in Spain require employees to answer calls and WhatsApp messages outside normal work hours?

The term is known as 'digital disconnection'. It is nothing more - as its name suggests - than the legally protected right of employees to not be forced to connect to corporate electronic devices outside of work hours and to not have to respond to any communications, e-mails, phone calls and so on related to their job.

Switching off from work is protected by law in Spain. However, there is one exception. These are situations whereby companies are allowed to contact their employees outside of their normal working hours. The key? It lies in what is known as the availability bonus - effectively, being on-call. These are additional amounts paid to certain employees so they are available during pre-agreed time slots outside their routine work schedule.

However, such availability must be agreed with the employee in question, either in their contract of employment or in a subsequent agreement, as it is a voluntary benefit that the employee must expressly, not verbally, accept.

As pointed out by Rödl & Partner, an international company providing legal, tax and auditing advisory services, in a July 2023 ruling at Madrid's High Court of Justice (TSJM), the judges ruled that, if employees receive an availability bonus, they cannot avail themselves of the right to digital disconnection.

"This bonus rewards the employee's acceptance of providing services or going to work outside of their normal working day when deemed necessary. Therefore, if the employee has voluntarily agreed to be reachable and available outside their working hours and in return is paid for doing so, this implies that the employer can contact them out of hours by phone or otherwise without the employee being able to avail themselves of their right to digital disconnection", state these legal experts.