The Supreme Court clears up one of the most uncomfortable doubts about telecommuting: can an employee's personal cell phone be called in case of emergency? When time is short and the employee is out of the office, can the company use his or her personal number to locate him or her?
The recent ruling of the Supreme Court (Social Chamber, STS no. 257/2024, February 20) introduces a necessary nuance in the interpretation of the right to digital disconnection of workers, especially in remote work contexts.
The controversy arose when a company was sanctioned for contacting the personal cell phone of a worker during her working day in teleworking mode, as an imminent emergency linked to her area of responsibility had been declared. The worker did not answer. The company subsequently considered this omission as an infraction.
What was at stake was not only the content of the collective agreement or the literal interpretation of the right to disconnect, but the balance between the employee’s rights and organizational needs in non-face-to-face contexts.
What exactly has the Supreme Court said?
The Supreme Court considers that:
- In exceptional cases of justified urgency, the company may contact the employee’s personal number -provided that this channel has been previously used with consent, even tacitly-.
- The right to digital disconnection is not automatically violated by the simple fact of trying to contact, if this occurs during working hours and in the face of an unforeseen organizational need.
- The employee’s failure to respond may, in certain circumstances, give rise to disciplinary consequences, if his or her availability during working hours is required and the contact channel has been reasonably agreed upon.
The Court emphasizes that what is relevant is not so much the means (the personal cell phone), but the exceptional nature of the contact, the time in which it occurs and the reasonableness of the employer’s action.
Remember....
- The employee’s personal cell phone cannot be used as an ordinary contact channel without express or tacit consent. It is important to record the valid communication channels, especially in remote work modalities.
- This ruling does not enable permanent access to the employee at any time. The right to disconnection remains in force but is qualified depending on the circumstances and the seriousness of the situation.
- If your organization foresees urgent situations that require immediate action, it is advisable to agree with clear protocols and mutually accepted channels of contact with employees.
- The company must always justify the “urgent and necessary” nature of the contact. It will not be sufficient to invoke it generically.
In short, the Supreme Court (SC) ruling does not abolish the right to digital disconnection, but it does clarify that this is not absolute. In certain contexts, such as remote work, and in situations of real urgency, occasional contact with a personal cell phone does not constitute an infringement if it has been used in moderation and within working hours.
We recommend that you review the contact protocols established with your staff, especially if part of the team works remotely or in hybrid mode. Being prepared will avoid misunderstandings… and penalties.
For further information, please consult with Labor consulting
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