If you’ve been compulsively checking your works email throughout the holiday season, why not take the opportunity to relocate to France?

Since January 1 this year French workers have had the “right to disconnect” outside work hours, say all the Press reports, but the reality is slightly different. The new law lays down no absolute right to disconnect but instead puts the burden on larger employers to consider this question with unions and other staff representatives.  In effect, if an employer requires or allows material out-of-hours use of email, it is going to have justify this.  As might be anticipated, this measure is based on concerns that the “always on” culture encouraged by mobile email access causes damages to employee health, wellbeing and relationships.

Companies with more than 50 employees now have to set up fixed time periods when staff are not to send or respond to emails. Employers have to try to negotiate an agreement on this with their trade unions. If an agreement cannot be reached, the employer must draft rules which make explicit the demands on, and rights of, employees in relation to email usage out of hours.  Beware!  The employer can’t decide to impose the rules unilaterally – a negotiation has to be attempted first.

Grand principles, of course, but for the moment, it is not at all clear how this “right to disconnect” should be implemented in practice. Measures could include:

  • reminding employees that they are forbidden to work during their holidays, sick leave and minimum rest periods
  • encouraging employees to use digital communication tools in a reasonable manner (e.g. no sending of unnecessary or multiple emails to subordinates in the evenings or at week-ends)
  • training of managers on employees’ right to disconnect
  • asking employees not to reply to non-urgent emails sent outside office hours and/or clarifying that nobody should be punished for not answering such an email outside those working hours
  • blocking out-of-hours emails altogether
  • considering email titles – something marked “urgent” which isn’t would be far more of a problem than the same email sent at the same time but headed “OK for tomorrow”, for example.

Each company has to review and adopt what measures it thinks will work best. Some companies may choose to take more drastic measures like preventing employees from accessing their inboxes remotely during holidays or shutting down the servers during the night, etc. but that is unlikely to become a requirement or even common practice, especially in the professional services sector . They could also sanction managers who keep sending instructions to staff that require an out-of-hours response where that is not really the case.   Some large companies have already taken steps to reduce out-of-hours workloads.   French Insurance giant Axa no longer requires some employees to reply to emails sent outside office hours under an agreement with unions signed last year.

However, the more senior and responsible the employee, the more restricted can be the right to disconnect. Simple out-of-hours rules may also not be appropriate for those working with colleagues in other time zones, or in relation to emergencies or genuinely time-critical matters. The negotiation process should also give a voice to those who actively want email access at night or the weekend, e.g. because they had time off during the day or because they will feel less stressed on a weekday morning for the knowledge that nothing has blown up at work (literally or figuratively) while they weren’t looking.  Occasionally checking e-mail over the weekend  or at night for your own reassurance does not necessarily mean that there is no “disconnection”; what will need to be monitored are those employees who regularly work and send e-mails during official “disconnection time”; or who demand responses from others in that time when it is not necessary to do so. In other words, the ability to work out-of-hours can be a stress-reducer but the actual or perceived obligation to do so will be the opposite.

So long as the rules which the employer develops (in the absence of agreement, if need be) are reasonable having regard to these different considerations and its own objective business needs, they will be very hard to criticise legally.

The employer has to show good faith attempts and steps taken by way of its proactive management of disconnection and rest time, potentially even including formally warning employees who are in serious or repeated violation of the disconnection guidelines.

The new law contains no direct penalty for employers which do not bring in such rules or do so without prior worker negotiation, but such failures will most probably be used persuasively against them in related claims by employees, e.g. in relation to stress, work related accidents due to fatigue, burn-out, etc. and could lead to industrial action.

We are running a session on this important topic in our Paris office on 9th March at 8.30 to 10am.   If you would like to attend or to receive the notes from the event, please contact pauline.pierce@squirepb.com.