Thanks to the use of new technologies, it has become so simple and immediate to work "anytime, anywhere" that, nowadays, the real problem seems to be that of stemming the rampant hyper-connection and the consequent psycho-social risks, from overworking to burnout, to be clear.

The picture is certainly complex and susceptible to multiple lines of enquiry, but, from an employment law perspective, the tip of the iceberg is the increasingly thin and blurred boundary between the professional sphere and private life.

The Court of Justice of the European Union has repeatedly emphasised the need to keep working hours and rest time separate, but it is clear that the intrusion of technology into everyday life creates the opportunity for frequent and insidious interferences, defined by scholars as "time porosity", that is, a sort of osmosis between the worker's online and offline dimensions.

Disconnection thus presents itself as the possibility to "switch off" and consists of the worker's right not to use technological tools and not to be involved in electronic communications relating to the work dimension outside working hours. All this without – obviously – suffering any kind of negative repercussion in the event that – once working hours have ended – the employee turns off their work mobile phone and computer, does not answer phone calls from colleagues, superiors or subordinates, and does not respond to emails and messages during holidays, public holidays, and rest periods.

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If disconnection is necessary to ensure the protection of the worker's psycho-physical wellbeing, does this "right" exist in the legal system?

In the Italian legal system there is no specific legal provision on the right to disconnect for all workers, but, in Law No. 81/2017, Article 19, there is a reference to "technical and organisational measures necessary to ensure the worker's disconnection from technological work tools", referring exclusively to agile working.

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So is the right to disconnect provided only for so-called smart workers? Are "traditional" employees obliged to read work-related emails and messages even at night and during holiday days, or can they simply "switch off"? Can they exercise the "right" to disconnect?

It must first be noted that in Italy disconnection is not classified as a "right", unlike what happens, for example, in France and Spain. The "heart" of the matter is precisely to verify whether an ad hoc regulation is essential to guarantee workers' disconnection outside working hours and, in this regard, the most convincing answer seems to be "no".

In fact, a specific legal provision on this point does not appear necessary, as the so-called right to disconnect is not something new in our times, although it is certainly amplified in the era of digitalisation of work performance and the casualisation of employment protections.

Disconnection, ultimately, is based on the fundamental principle of separation between the professional and personal spheres, guaranteed by cornerstone rules of our legal system, protected at constitutional and EU level to safeguard psycho-physical health and promote the integral development of the person.

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So what would happen if an employer were to demand a response from the worker to a phone call, message or email outside working hours?

The employee would be entitled to additional pay for overtime work, possibly also for work on public holidays or at night. And it is precisely the use of technological tools that would enable the traceability of such work, thus facilitating the worker in meeting the burden of proof, which is generally the sore point for the claimant.

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But if there is indeed a sort of right to disconnect, why do we continue not to “switch off” from work during our free time and, consequently, feel increasingly under pressure and stressed?

It is probably not just a matter of labor law, but also a social and cultural issue that requires a broader change in mindset.

A final reflection may be devoted to the boundaries—increasingly blurred and indistinct—between the private sphere and the professional dimension: does the distinction that is often drawn between personal life and work imply an underlying opposition?

Finding the right balance is certainly not easy, as demonstrated by the numerous intrusions of work activities into the “private” sphere of family life. In fact, in addition to working at home, there is also the “overlapping of personal life with work activity,” which consists of all organizational activities related to private and family life, as well as recreational activities such as chatting with friends or relatives via mobile applications.

In the proper exercise of the right to disconnect, both sides of the coin must certainly be taken into account in order to take an important first step toward an effective balance between technology, work, and private life.

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