Digitalisation is well under way and has an increasing impact on the working environment and everyday life throughout the world. Smartphones, however, are not just convenient; they also mean that employees are available 24/7 resulting in significant burden on private and family life and sometimes even in health related consequences. Some employees report suffering from COS (Cognitive Overflow Syndrome).
However, many employers have a significant interest in their employees' availability. In addition to the advantage of greater productivity, availability may often be crucial in the competition for customers, especially in critical situations. Even employees often fail to take a critical look at this issue and its reported risks. For many employees, it is a matter of course to check or even reply to the emails they have received after work. Employees often deliberately choose to be available around the clock because they want to stay fully informed at all times. In particular, many employees also expect that their professional life will become more flexible owing to digitalisation. Against this background, it does not seem strange that constant availability is still so all-pervasive – despite possible risks.
There are no standard regulations addressing this subject matter throughout Europe. Directive 2003/88/EC of the European Parliament and the Council dated 4 November 2003 at least provides the Member States of the European Union with certain guidelines to ensure safety at work and protection of health with regard to working hours; this must be implemented by the national lawmakers. For instance, the Directive stipulates that each employee must be entitled to a minimum rest time of eleven hours. It also stipulates that the Member States must take the necessary measures to prevent the maximum limit of 48 working hours per week from being exceeded. However, apart from these minimum requirements, the Member States are free to govern the employees' working hours by statutory law and to prevent risks associated with constant availability.
Situation in France
A statutory recognition of the right to disconnect
Although the French Supreme court has already recognised the employees’ right to disconnect since 2004, this right has only been recently introduced in the French Labour Code by the Law of August 8, 2016.
In force since January 1, 2017, the right to disconnect which is not legally defined may be described as the employee’s right to disconnect from any digital device or tool used for professional purposes such as Smartphones, email or the internet during, his or her free time and vacation. The right to disconnect benefits, in principle, all employees, regardless of their professional category and the related responsibilities.
Companies concerned by the mandatory implementation of the employees’ right to disconnect
The law of August 8, 2016 obliges certain companies to set out the terms and conditions enabling their employees to fully exert their right to disconnect and to put into place mechanisms destined to regulate the use of IT-devices in order to ensure compliance with the employee’s mandatory rest periods, vacation as well as his or her personal and family life.
The companies concerned are:
- companies having a workforce of at least 50 employees and which are as such subject to the annual mandatory negotiation on professional equality and quality of life at the workplace.
companies implementing day-off agreements (so-called “convention de forfait jours”) according to which the employee’s working time is computed in terms of days with no reference to a number of hours worked.
In light of the above, one might be inclined to conclude that a company, irrespective of its size/headcount, which is deprived of employee representation bodies and which has not entered into day-off working time agreements, falls outside the scope of the obligation to grant, via collective agreement or, failing this, by unilateral decision, a right to disconnect to the employees.
However, drawing the conclusion that these companies are exempted from all obligations with respect to the right to disconnect would be false. Indeed, Article L. 2242-8, 7° of the French Labour Code provides that the implementation of the right to disconnect is notably destined to ensure compliance with the employees’ entitlement to mandatory rest and paid vacation, and hence to protect the employees’ health. Consequently, and in the event the employer fails to comply with the aforementioned obligation, employees could claim a violation of their employer’s duty of care. Therefore, and even though these companies are not formally obliged to grant such right, it is advisable to define, in writing, the rules regarding the right to disconnect and this within the framework of each employer’s general obligation to prevent the occurrence of professional risks.
In this respect, it is important to highlight that pursuant to the Macron reform and its related ordinances of September 2017, employers of companies having less than 11 employees, can hence submit a draft agreement to the employees covering all topics which are open to negotiation, such as the right to disconnect. Such agreement will be valid if ratified by a majority of two-thirds of the company’s personnel.
Implementation of the right to disconnect – Negotiation first
The law of August 8, 2016 leaves it up, in the first place, to the social partners at company level, i.e. the employer and the trade union delegates, to negotiate on both, (i) the modalities of implementing the right to disconnect and (ii) the setting up of devices regulating the use of IT-devices in order to notably ensure the employees’ right to have his private and family life respected.
In case the negotiation fails, employers must implement an internal policy, which effective implementation will be subject to the prior consultation of the Works council, or failing this, the staff delegates. This policy must set forth the terms and conditions of exercising the right to disconnect and simultaneously provide for the implementation of training actions destined to raise manager’s awareness to ensure a reasonable use of digital devices.
The legal value of such policy is that of a unilateral undertaking. French employers should be particularly vigilant in case their policy imposes obligations on their employees and provides for sanctions in case of non-compliance with same. In such a case, the policy can be deemed an addendum to the companies’ internal regulations and must thus be submitted to the Works council and in principle to the Health and Safety Committee for consultation and to obtain their respective opinion before being sent to the Labour inspector. Non-compliance with this procedure renders the Policy unenforceable against the employees.
Measures to ensure a genuine right to disconnect – a multitude of possible actions
Irrespective of whether these measures are provided for by a company collective agreement or have been unilaterally elaborated through a policy, employers have to ensure that their actions taken are serious and sufficient in light of the risks existing within their companies. This shows a certain ambivalence of “disconnection”: besides being a right granted to the employee destined to ensure the respect of his or her personal and private life, disconnection simultaneously constitutes a genuine duty for employers in the framework of their absolute safety obligation towards their employees. The array of possible measures to render the right to disconnect effective is vast, enabling employers to adopt actions which are best suited for their specific situation and economic reality.
For instance Natixis, a large actor in the financial sector, has attached a policy entitled “For a proper use of emails”, inviting its employees to disconnect in particular during the weekends and vacation periods and recommends to be selective regarding the recipients of emails and to ensure clarity and concision of the messages sent. The French Bank, Société générale, undertakes to draft and ensure the distribution of a “Policy on the proper use of electronic messaging” and implements training actions aimed at raising the employees’ awareness with regard to the use of technological devices. Such training actions are indeed a mandatory part of the Policy which must ensure that the company’s personnel, blue-collar workers and executives alike, are effectively trained to make a reasonable use of digital devices made available to them.
Situation in Germany
No statutory regulation in Germany
Unlike French labour law, German labour law does not contain any statutory "right to disconnect". However, laws such as the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work (Arbeitsschutzgesetz) and the Working Hours Act (Arbeitszeitgesetz), plus Directive 2003/88/EC of the European Parliament and the Council of 4 November 2003 (the Working Time Directive), set certain legal limits with regard to the constant availability of employees.
The primary goal of the European Working Time Directive and the German Working Hours Act is the protection of employees from health risks arising from working beyond the limits, but the protection of human dignity and the employees' rights to privacy by warranting sufficient time off is also important. These goals must be considered with regard to the legal classification of constant availability outside normal working hours. In this respect, constant availability is similar to so-called on-call duty. According to the case law of the Federal Labour Court, this is the case when an employee is obligated to stay within his own residence or alternatively at another place of which the employer must be notified in order to be able to resume work when called (see Federal Labour Court, judgment of 26 February 1958 – 4 AZR 388/55, BeckRS 1958, 103186). Following this case law, the on-call duty periods are generally considered part of the rest periods. Only if the employee is actually called on to perform work is the time considered working time. Although the employee who is voluntarily available during his off-work time is, as a rule, not obligated to be available, the similarity to on-call duty is still obvious, so an application of the regulations concerning working time mutatis mutandis appears reasonable. Therefore, the period of time during which an employee who is always available actually works must be deemed working time and must be taken into account with regard to the maximum working hours permitted in the Working Hours Act. There is a lack of consensus regarding the issue of whether marginal work constitutes an interruption of the rest period, thus making a new rest period of eleven hours, as required under the Working Hours Act, necessary. Nevertheless, the German Working Hours Act at least provides for a comprehensive ban on work on Sundays and public holidays, also for this type of work, and the employer must pay attention that this ban is complied with. If the employer does not follow these rules, he is committing a regulatory offence according to § 22 of the Working Hours Act that can carry a fine of €15,000.
In 2016, however, the Ministry of Labour and Social Affairs provided the white paper "Work 4.0" ("Weissbuch Arbeiten 4.0"), which sets out a guideline to balance the flexibility needs of companies and workers while at the same time maintaining health and safety at work. In this context the Minister of Labour and Social Affairs, companies, social partners, civil society and academia reached a broad consensus regarding the fact that working time must be organised in a way that better takes into account particular and differing time needs. As a result, it has been pointed out that there is no need for further legislative action. According to the parties involved in the project, the best way to address the issue is to negotiate collective agreements, making flexibility compromises and drafting works agreements. Furthermore, it has been concluded that a real far-reaching reform would be a Working Time Choice Act (Wahlarbeitszeitgesetz) containing provisions regarding protection from overwork, the dissolution of work boundaries, time sovereignty and flexibility compromises. This would give employees more options regarding their working time and location and to some extent a possibility to deviate from the applicable provisions of the Working Hours Act. However, so far no concrete legislative proposals have been presented.
The unions' perspective
Although trade unions – such as IG Metall – have been demanding stricter statutory provisions, there are no collective agreements addressing the subject of availability of employees explicitly. IG Metall addressed the dissolution of boundaries between working time and private life at a conference in October 2017. However, until now, no collective bargaining agreements addressing this subject have been negotiated.
(Internal) Policies on Company Level
The aforementioned statutory working time limits are in fact weakened, especially in establishments with flexible working time models or even trust-based working hours. This results in a legal grey area regarding the circumstances under and the times at which employees must be available. However, according to the Federal Ministry of Labour and Social Affairs, the legal framework offered by existing statutory provisions is sufficient. ("Weissbuch Arbeiten 4.0") Which does, of course, not mean that there is no need for any actions. Stricter statutory provisions cannot meet the different requirements of various business structures and areas of work. To solve the problem, it is thus most practical to allow companies or the parties to collective bargaining agreements to give concrete form to the legal framework conditions in internal rules or collective bargaining agreements, respectively.
To this effect, various regulatory models have become established at company level, complementing the legal framework conditions existing in Germany: The German Works Constitution Act provides for a codetermination right of the works council with regard to working hours. This also includes availability and the issue as to whether hours worked after work, during leave or at weekends are considered working hours. Therefore, availability can be regulated by way of works agreements. It is therefore important to find possible compromises between fixed and flexible working hours in cooperation with the works council. In this respect, it seems feasible, for example, to clearly define the hours during which it is still possible to reach the employee or to introduce subsequent remuneration for the employee's willingness to be available also outside working hours.
Various models have been developed in German companies, in which employee representatives are strong for historical reasons. BMW, for example, has set out in a works agreement that employees may agree with their respective superior on fixed hours during which they are available, and mobile activities carried out during off-work time are credited to their working hours account. But the employees are allowed to insist on their right to inaccessibility during holidays, the weekend and after end of work.1 With regard to employees (subject to a collective bargaining agreement) who have received a work mobile, since the end of 2011 Volkswagen turns off the mail server for all smart phones half an hour after work and does not switch it back on until half an hour before work.2Porsche now wants to go beyond those regulations of the other companies and plans to strengthen the rules of the mother company Volkswagen. The works council of Porsche plans to implement a works agreement, such as already in force at Volkswagen, which stipulates that the employees' mail server must be switched off between 7 p.m. and 6 a.m. as well as during weekends and holidays. Furthermore, Porsche intends to establish a system which sends the email back to the sender and deletes it automatically from the employee's mail account. This measure is supposed to ensure that the employees do not have to go through hundreds of emails in the morning. Important mails have to be sent again during working hours. The planned works agreement is to apply to all employees paid according to collectively agreed pay scales; employees who are not subject to collective bargaining agreements, such as managers, would not fall under the scope of this agreement. According to the works council chairman, a manager receiving a high bonus can be expected to answer an email in the evening.3 At Daimler all emails the employee receives while the out-of-office message is enabled are, in fact and already since 2013, deleted. The sender gets the out-of-office message and has to send the email again during working hours.4 Other companies have also found different solutions at company level. These solutions range from mandatory individual agreements between superiors and employees to unilateral obligations on the superior's part to general agreements applicable to all employees or a group of employees of an establishment. Deutsche Telekom decided already in 2010, after reports on many employees’ suicides of France Télécom due to a working atmosphere of fear and stress, that employees are not obligated to check their emails after working hours, but there are no technical countermeasures to ensure it.5 Bayer, BASF and E.on declared explicitly that their employees do not have to check their smartphone or emails after work but, in contrast to other companies, there is no concrete works agreement regarding this subject.6 With regard to all employees and not only the employees below the higher management level, Henkel decided that nobody has to check their emails after official working hours. Even Henkel's CEO declared that on one day of the week, on Saturday, he himself would not check his emails, and prohibited all executive board members to contact him between Christmas and New Year's Day.7 Puma and Deutsche Bankexplicitly do not expect that employees can be contacted by email during their holidays. Within Deutsche Bank, it is possible to set an out-of-office reply in your email account.8 Siemens is more flexible and does not have any fixed agreements. Employees decide on their own if they want to be available or not after working hours because in Siemens' opinion, all the employees are responsible. But in general, Siemens does not require the employees to check their emails after working hours or during holidays.9 Evonik uses an "email brake" (E-Mail-Bremse) set out in a works agreement which applies to all employees of the company. The employees, together with their supervisor, define a period of availability. Beyond this period, the employees do not have to answer emails, but the email servers are not turned off and emails are not blocked.10