The Economic and Social Council (CES) issued an opinion(1) on 30 April 2021 recommending the addition of a new article (L. 312-9) to the Labour Code on "Respect for the right to disconnect". This article would cover certain provisions pertaining to the obligation to define a right to disconnect scheme, its implementation, its contents and any sanctions applicable.
When employees use digital devices for their work, there should be an obligation to define a scheme at company or sector level, making sure that the right to disconnect outside working hours is respected.
The scheme could be implemented by way of a collective bargaining agreement or a subordinate agreement. Otherwise, the right to disconnect scheme should be implemented once the staff delegation has been informed and consulted or by mutual agreement in companies with at least 150 employees. If there is no staff delegation, the employer should define the right to disconnect scheme and inform employees of it.
The scheme should be adapted to the specific situation of the company or sector, and should in particular define the practical arrangements and technical measures for disconnecting from digital devices; awareness-raising and training measures and compensation arrangements in the event of one-off exceptions from the right to disconnect.
Any breach of the obligation to implement a right to disconnect scheme would be liable to an administrative fine of between €251 and €25,000 imposed by the director of the Inspectorate of Labour and Mines (ITM).
Furthermore, the CES points out that although the right to disconnect is not currently specifically mentioned in legislation, several other provisions in the Labour Code already provide safeguards when it comes to disconnecting from technology, including in particular the rights and obligations applicable to working time and the rules applicable to health and safety at work, and in particular the employer's general obligation to ensure the health and safety of all employees.
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email ([email protected] or [email protected]). The Castegnaro website can be accessed at www.castegnaro.lu.
(1) Further information is available here.