Right to Disconnect: Drawing the line after work

The Right to Disconnect Bill has been introduced as a private member’s bill, a form of legislation that is rarely enacted. It comes in the context of India’s recent consolidation of labour law through the four labour codes, which regulate working hours, overtime, and employer control. Against this background, the Bill marks a pivotal moment in Indian labour law. In this age of digital technologies, work increasingly extends beyond the physical workspace. Therefore, it is only prudent for the legislature to reconsider how labour law responds to constant connectivity. However, it does so in a framework that regulates work primarily through time-based constructs.

Indian labour law is yet to define what constitutes as ‘work’ in a digital economy. While the Bill regulates after-hours communication, it does so without clarifying the scope of ‘work’. This omission becomes crucial when the Bill is read alongside other codes governing working time and employer control. Therefore, we examine unresolved questions concerning the definition of ‘work’, the scope of the proposed right, and its potential constitutional character, while drawing a comparison as well.

Some ambiguity

The Bill provides employees the right to not respond to work-related calls or mails beyond the prescribed working hours. However, it fails to address whether such after-hours engagement falls within the legal constructs of work.

This ambiguity is particularly obvious in the interaction of the Bill with the Occupational Safety, Health and Working Conditions Code, 2020, which continues governing working hours and overtime in Indian labour law. However, the Bill does not clarify whether after-hours digital engagement amounts to “work” under the Code. This inadvertently creates a conceptual gap where communication is regulated without being integrated in the legal framework governing working time. As a consequence, the right to disconnect operates more as a behavioural norm than a labour standard.

Approach of other jurisdictions

The gaps become apparent when compared with jurisdictions that have already imbibed the right to disconnect in their legal regimes. In the European Union, employer control became a key parameter for assessing working time. Through judicial precedents, an expansive definition was adopted, which included on-call time, standby periods, and other forms of availability, even where no active work is performed but the employer continues to exercise control. This principle further evolved through decisions such as SIMAP, Tyco, and Jaeger, where the European Court of Justice equated employer’s control with work. Similarly, France does not try to redefine work. Instead, its labour law demarcates working time and rest time. Periods of availability under employer control are considered working time, and digital communication is integrated into this framework through collective bargaining. Germany enforces strict working time and rest period regulations as well. These comparisons are not offered for replication in India, but to engage with an unresolved legal question: when does an employee’s time belong to the employer?

The Indian labour code contains mandatory rules, prescribing limits on working hours, and contractual terms negotiated through employer policy and agreements. The Right to Disconnect Bill does not specify whether the given right is a mandatory labour standard or its term can be modified via a contract.

Another question concerns the Bill’s constitutional character. The freedom to disengage bears an evident relationship with Article 21 of the Constitution. Yet the Bill neither traces its constitutional lineage nor articulates how these guarantees are to be realised within the workplace. The Bill leaves unresolved whether the right to disconnect is purely statutory or indicative of a deeper constitutional engagement between work and individual autonomy.

Conclusion

The Bill recognises that digital work has blurred the traditional boundaries between working time and personal time, but it does not explain how this transformation is to be accommodated within the legal framework which governs working hours, overtime and employer control.

A comparative study reveals that the right to disconnect becomes effective when an employee’s time is treated as working time. This gap is yet to be filled. Until the Bill addresses how digital labour complies with existing labour laws, it will continue to rely on a framework designed for regulating physical workplaces.

The Bill leaves open whether the right has a constitutional character. Although there is an evident connection between Right to Disconnect and individual autonomy under Article 21 of the Constitution, this is not made apparent by the legislature. The Bill neither identifies this gap nor acknowledges it, which leaves it open to divergent interpretations.

For these reasons, the Bill is best seen as the beginning of a broader conversation, one that the Indian labour law jurisprudence will eventually address.

Vandana Tiwari, advocate practising at the Calcutta High Court; Avantika Shukla, advocate practising at the Delhi High Court