A new legal "right to disconnect"? But will France's new law provide an effective boundary to the digital workplace?

Published on 17th May 2016

President Francois Hollande’s Socialist Party is reportedly close to voting through a measure giving employees for the first time a “right to disconnect” (see here). Why? To assist in preventing digital burn-out – an issue which in this age of 24/7 accessibility is not just a potential problem for French workers.

A charter of good conduct

France is proposing that from January 2017, all companies should be required, every year, to negotiate an agreement with their representative trade unions, on the way they will allow their employees a legal right to disconnect. This negotiation would take place in the framework of the annual negotiation on professional equality and the quality of the working life.

In the absence of agreement being reached, it is proposed that businesses would then be allowed to determine themselves how they will comply with the right for an employee to disconnect.

In companies with more than 50 people, employers will have an additional obligation to consult the Works Council and to draw up a charter of good conduct. This charter will set out the hours – normally in the evening and at the weekend – when staff should refrain from sending or answering emails and provide for training courses on the appropriate use of digital tools.

Perhaps unsurprising, this measure is about the only part of a new proposed French labour law, named after Labour Minister Maryam El Khomri, on which there has been positive consensus.

The new law follows on from a collective bargaining agreement between unions and employers in the high tech and consulting sectors in France back in April 2014, which provided an obligation on employers to disconnect communication tools once employees had worked a 35 hour week.

But will it work?

Employers in all EU Member States are already subject to the requirements of the Working Time Directive, as well as their own national health and safety legislation – setting at least some boundaries for employers in governing an individual’s working time and their responsibility for a worker’s health.

The proposed new French law may in reality protect workers in France little further – at present it comes with no penalty for businesses failing to comply, so the fears are that it will quickly be ignored. The industrious employee will probably remain just that. And in reality, for those companies conducting business and competing in the international arena, and for those employees who want to work more flexibly, compliance with it may simply be impracticable.

The new French law, if passed, can perhaps therefore be viewed principally as a positive catalyst for bringing the working time issues surrounding the digital workplace to employers’ attention.

So what other solutions should employers be looking at? 

Digital burn-out is a real issue for the modern workplace and if employers get it wrong, it may prove costly – potentially damaging an employee’s health and perhaps causing them to make costly mistakes. Employers keen to attract top talent will also want to make their workplace as attractive as possible.

Email itself has been with us for decades, and although it is now being joined by new messaging services (which may themselves render email obsolete at some point in the future), the right to disconnect is one which is now on many companies’ radars.

Indeed, businesses are increasingly adopting a range of solutions to the perceived risks of burn-out, ranging from internal policies and procedures on using company email, to wearable technology monitoring an employee’s health and well-being. The policy of a German car-maker, of allowing its employees the option of setting up a function to automatically delete their emails whilst they were away, and that of an US insurance company which pays a bonus to workers who get 20 consecutive nights of good sleep (through using a sleep monitor), will be attractive to many employees – although others may well view such policies themselves as a more obtrusive invasion than the technology they seek to restrict.

So what should employers do?

Wearable technology is an interesting solution and with the prospect of employers taking increasing responsibility for employee well-being, is one which is likely to increase in popularity. However, introducing and using such technology effectively will not only come at a financial cost, but also require employers to educate employees as to its benefits, whilst taking particular care of privacy and data protection issues.

Employers may first want to look at more practical steps including:

  • Ensuring that training includes not only how to “work” the relevant technology but also guidelines on how it should be used and when. What is excessive use? 
  • Encouraging employees to use their “out of office” properly, perhaps asking for the email to be sent on to another colleague who will then deal or inform the absent employee on their return. 
  • Ensuring that managers do not fall into the trap of taking advantage of those employees who are willing to do that “bit more”. 
  • When operating across jurisdictions, allowing employees to take responsibility for managing their working hours around times when demands from other countries require late nights or early mornings. 
  • Employers should also ensure that teams are properly resourced, particularly during holiday periods where the absence of employees on holiday may place pressure on others. 

These are just a starter for ten and no doubt there are many more creative ideas on how employers really can ensure they get the very best from technology and their employees – and without the need to comply with yet more legal requirements.

Interested in hearing more from Osborne Clarke?

* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

Connect with one of our experts

Interested in hearing more from Osborne Clarke?