“Le droit de la déconnexion”

As of January 1, 2017, French companies with more than 50 employees have to negotiate with their relevant union to reach a collective agreement on:

  • the employees’ “right to disconnect”; and
  • ways in which they can regulate the use of digital tools such as email.

In short, they need to try and come to an agreement with staff as to when they should/should not be checking work emails.

This comes as part of a swathe of recent domestic employment law reform in France and is one of the few reforms that did not lead to significant strike action over the course of 2016.

The rationale for the new law is that the rise of smart phones and remote access means that employees can very rarely “switch off”, leading to issues with unpaid overtime, and an increased risk of work related stress and eventual burnout.

The negotiation with employees is mandatory and should take place during the annual negotiation on the “professional equality and the quality of life at work”.

Failure to comply with the mandatory negotiation is punishable by a fine of up to €3,750 for the legal representative (and up to €18,750 for the legal entity) and a term of 1 year’s imprisonment.

However, it is important to note that only the negotiation is mandatory and not the signature of a collective agreement. Therefore if the negotiation fails and no collective agreement is reached, affected companies are instead advised to draft a policy on the right to disconnect, and the ways in which they will regulate the use of digital tools.

If an employee is reluctant to comply with the collective agreement or with the policy on the right to disconnect, the company remains responsible for that.

It is therefore advisable to include in the relevant policy or collective agreement a provision that provides that employees who often send emails outside of working hours will be disciplined (after 2 or 3 warnings). Moreover, the policy and the collective agreement should include the necessary means to regulate the use of digital tools remotely, such as, for example, reports on the number of emails sent outside of working hours or during the weekend.

Policies that attempt to push the liability back on to the employees will be unsuccessful, as there is an active requirement on companies to enforce this new law. The new law has been criticised by some as potentially limiting some employees’ flexibility, about the way in which they choose to work. For example, some employees would rather make themselves available for family commitments late afternoon and then log back on at home in the early evening.

It remains to be seen what the exact impact of the new law will be, and whether or not other European jurisdictions will push for it too.