The “right to disconnect” – what does this mean for employers? 

New Law n°2016-1088 of 8 August 2016, requires employers to negotiate with unions regarding their employees’ “right to disconnect” as from 1 January 2017.

What is the “right to disconnect”?

There is no legal definition. It concerns the right of an employee to disconnect from professional digital tools during rest times and periods of absence.

Which employers are affected?

Companies employing more than 50 employees and in which trade-unions qualified to undertake such negotiation are in place.

What is the extent of the obligation to negotiate?

The new law requires employers to open negotiation regarding the implementation of:

  • procedures enabling employees to exercise fully their “right to disconnect”
  • measures by which to monitor the use of digital tools, aimed at insuring compliance with the rules on rest times and leave of absence and the protection of the personal and family lives of employees

The “right to disconnect” is also aimed at protecting the health of employees. Indeed, all employers have an obligation of safety towards their staff.

The obligation to open negotiation does not imply an obligation to sign an agreement. However, it prevents the employer from implementing unilateral measures.

When is negotiation mandatory?

The implementation of procedures for exercising the “right to disconnect” must be discussed during the annual negotiation concerning “professional equality and the quality of work life” (one of the subjects of obligatory annual negotiations with qualified trade-unions within companies employing more than 50 employees).

What if the initial negotiation fails?

Where negotiation with the qualified unions fails, the employer must implement a policy after officially informing and consulting with the employee representatives (works council or staff delegates and health and safety committee). The policy must give genuine effect to the “right to disconnect” and implement measures as regards training and awareness, aimed at insuring the reasonable use of digital tools.

Sanctions/risks in case of non-compliance

  • criminal penalties for a failure to open negotiations with the qualified trade-unions, equivalent to a fine of €3,750 for the legal representative and 1 year of imprisonment and/or fine of €18,750 for the legal entity
  • civil damages and potential criminal penalties for failure to comply with safety obligations towards employees (now including the “right to disconnect”) which could include liability for resulting harm to the employee (both physical and mental.)

What about executive employees/managers?

For executive employees/managers (“cadres”), workload and “right to disconnect” are closely linked. This is especially so for autonomous executives/managers who are not subject to working schedules but whose working time is assessed in terms of days worked throughout the year.

As far as this category of employees is concerned, the law now specifically requires that collective bargaining agreements, entered into since 10 August 2016 and enabling employers to implement this type of working arrangement, include a mandatory clause on the procedures for exercising the “right to disconnect”.