The right to disconnect is within the new legal framework Law of 8 August 2016 relating to Work, Modernization of Social Dialogue, and Securitization of Professional Processes called “Labor Law.”
With the rise of many new ways to communicate within the workplace, rest periods (which are legally granted to employees in France for at least 11 consecutive hours every day) can be jeopardized. To protect employees from such jeopardization, the French government has modified article L. 2242-8 of the Labor Code, and instated a right to disconnect to “ensure the respect of the rest periods and breaks, as well as the personal and domestic life”. This disposition applies to companies with 50 or more employees, as well as to employees in companies with less than 50 employees subject to a flat-rate pay agreement that covers days worked (“days-off agreements in which employees work a fixed number of days per year”).
The first provisions relating to the right to disconnect appeared in France’s collective bargaining agreement (CBA) (for design and technical departments, engineering consulting companies, and consulting companies called SYNTEC) in 2014 through an amendment to the national agreement of 22 June 1999 relating to working time. This agreement was made applicable to all companies in this practice area on 26 June 2014. The Mettling report released in September 2015 about digital change and life at work showed the need for such provisions and paved the way for other CBAs to adopt similar measures. Parliament has now taken up the task of making the right to disconnect a legal principle.
Negotiating the Right to Disconnect
The Labor Law provides that the right to disconnect must be negotiated with trade-union representatives but leaves great freedom regarding an agreement’s content and the adopted measures’ form. Parliament willingly designed this freedom so that each company is able to adapt the right to disconnect to its activities and any technological evolutions.
The Labor Law does not require that employers take concrete measures to implement the right to disconnect. Nonetheless, employers remain free to do so if they wish. Some large companies have, for example, already implemented
- automatic shutting down their email servers between 6:15 p.m. and 7:00 a.m. to prevent employees from sending and receiving emails or
- forbidding emails between company employees for half a day per month.
The negotiation can also lead to establishing best practices, policies, and guidelines to educate employees about the right to disconnect, for example,
- adding a footer at the end of emails to remind the recipient of the right to disconnect or
- advising employees to send emails only whenever and to whomever necessary.
The Labor Law’s wording only imposes that “actions to educate and to raise staff awareness as to a reasonable use of digital tools” be implemented for all employees.
Implementing Company Negotiations
Article 55 of the Labor Law adds that the mandatory annual negotiations relating to professional equality between men and women and quality of life at work planned by article L. 2242-8 of the Labor Code must now also include the right to disconnect.
If an agreement cannot be reached through negotiations, an employer can take unilateral measures, after consulting with its Works Council, or, if there is none, the staff delegates, through a charter of best practices.
If the unilateral measures contain injunctions to act or not to act, a company would need to add such measures to its Internal Regulations following the procedure specific to the implementation of such a document.
Dispositions Applicable to Employees Subject to Days-Off Agreements
Specific dispositions apply to employees subject to a days-off agreement, given the complexity of keeping track of their working time.
If the content of an agreement on the right to disconnect is the same for those employees, the field of application is widened to cover every employee subject to days-off agreements, even if an employee is part of a company with less than 50 employees.
In companies with less than 50 employees, the new article 3121-64, II-3° of the Labor Code states that the modalities according to which the right to disconnect are implemented must be defined by the applicable CBA. This is already the case, for example, in the SYNTEC CBA, the consumer cooperative CBA, and the “banques populaires” CBA on work conditions of 6 July 2007.
If the applicable CBA does not define the right to disconnect’s modalities of exercise, the new article L. 3121-65, II of the Labor Code allows an employer to define such modalities unilaterally and to communicate them by any means to the employees concerned.
The Labor Law does not provide sanctions in case the measures set forth in article L. 2242-8 of the Labor Code are not enforced. However, in case of litigation, an employee would likely be entitled to bring up the disrespect of the right to disconnect. Although this right is currently just a principle that employers will have to closely monitor in its material applications and through the course of new technological mutations.