Right to disconnect enshrined in French Labour Law

12/12/2016

"Within the company different procedures, not necessarily legal ones but just as effective, should encourage disconnection: charters, default configuration of tools, awareness-raising actions (e.g. managers setting an example)", these were the recommendations of the Mettling Report which are now enshrined in the Labour Law.

Why was it necessary to create a right to disconnect?
During the past few years, the right to disconnect has been the subject of several reports, in particular one produced by Bruno Mettling in September 2015, bringing to light the major changes associated with the introduction of digital tools on working life and consequently the growing tendency for work to spill over into people's private lives.

Until now, the right to disconnect was only provided by a national collective bargaining agreement (in the ANI - Accord National Interprofessionnel or Inter-professional National Agreement) of 19 June 2013 on improving the quality of life at work) and implicitly by the Court of Cassation. Thus, in a judgement of 17 February 2004, the Court of Cassation ruled that not being able to be reached on one's personal mobile telephone outside of work hours did not constitute an offence, and therefore was not a reason for dismissal on the basis of gross negligence.

Seen like this, an employee's right to disconnect is the right to ignore emails or phone calls outside their working hours.

German inspired?
The debate on the right to disconnect did not start in France, but rather on the other side of the Rhine. Nevertheless, there are still no specific laws on this subject in Germany. There the debate led only to the implementation of pilot projects on a voluntary basis by companies that realised that having their employees permanently connected led to risks, even though they were aware that employees wanted more flexibility when organising their working hours. Conscious of the risks for private life and professional burn-out, the national works councils were all the more willing to agree with their employees on rules for the right to disconnect.

In Germany, in the absence of a specific legislation, implementation of a right to disconnect varies depending on the company. For example, Volkswagen introduced regulations relating to mobile working in September 2016. It ensures that times when employees must be able to be reached are identified on an individual basis in agreement with their line manager. Outside of these hours, the right to disconnect applies. Other companies have set up contingency measures ("email holiday entitlement") or delayed sending systems, and noted that electronic communication fell by almost 50% during the night and at weekends. Finally, some companies, such as Daimler, have set up a Mail on Holiday programme, which ensures that messages arriving during the holidays are automatically deleted from the employee's in-box and sent to other contacts.

What does the new law involve?
The Labour Law incorporates a "right to disconnect" into the French Labour Code applicable to all employees. So as from 1st January 2017, companies must provide for: "The terms and conditions for full exercise by employees of their right to disconnect and implementation by the company of systems to regulate the use of digital tools, with the aim of ensuring the observance of breaks and holidays, as well as private and family life. If agreement cannot be reached, the employer produces a charter after consulting the works council or, failing that, the staff representatives. The charter stipulates the terms and conditions of exercising the right to disconnect and furthermore provides for actions to educate and raise the awareness of employees and management staff regarding a reasonable use of digital tools" "Section L.2242-8, 7 of the Labour Code).

As a result of these provisions, collective negotiation is seen as a priority. Nevertheless, companies lacking of trade unions or that haven't reached an agreement are not exempt. In this case, they must produce a charter or best practices setting out, among other things, actions to educate and raise awareness (avoid sending emails outside of working hours, thinking about the best time to send an email, having access to delayed sending functions, etc.).

A safeguard for employers?
Recognition of a right to disconnect is intended to protect the private life of employees and limit psycho-social risks, but it should also limit certain risks for companies and improve their image as responsible employers.

In fact, the increasing erosion of boundaries between private life and work life over the past few years has tended to create new risks for employers: psycho-social risks, the failure to observe maximum working hours, daily and weekly breaks (particularly for employees on set working days), the risk of harassment and the risk of reclassification of on-call duty, etc. For example, it has been admitted that sending or receiving emails in evenings, at weekends or during holidays may constitute evidence for the employee to reclassify their actual working hours and obtain payment for overtime.

By putting strict rules in place for using digital tools and educating employees, especially management staff, companies will thus be in a better position to overcome these risks.

Authors

Caroline Froger-Michon
Partner
Paris
Dr. Marion Sihler
Senior Associate
Cologne