RIGHT TO DISCONNECT AND THE EL KHOMRI LABOUR LAW
Sabine Alix, avocat à la cour
Article 55 of the Labour Law, adopted on 21 July 2016, instated the right to disconnect which entered into force on 1 January 2017.
What does this provision consist of? How can it be applied?
Some examples… and proposed sanctions
Definition of the right to disconnect
The Loi Travail does not give a specific definition of the right to disconnect. We can however describe it as the right for employees to disconnect from their work-related digital tools and to not be reached by their employer outside their working hours (paid leave, “RTT” days off, weekends, evenings, etc.).
Scope of application
The right to disconnect concerns all employees. However, for some categories of employees, especially those who work per diem or telework, are more exposed to the risks of overconnection.
From now on, to be valid, per diem work (forfaits-jours) requires its collective agreement to lay down the conditions and procedures for employees to “exercise their right to disconnect”. (Labour Law, Art. L 3121-64) If none exists, it is up to the employer to define the conditions and procedures for exercising the right to disconnect and inform the concerned employees using all means.
In the case of teleworkers, employers must be all the more watchful and ensure that they allow them free time by not contacting them outside of the time slots set down contractually.
Setting up the right to disconnect
From 1 January 2017, in all companies hiring over 50 persons, the annual negotiation on equal opportunity and quality of life at work should also discuss the implementation of “mechanisms regulating the use of digital tools” by the company and the methods and procedures for employees to avail of them. (Labour Law, Art. L2242-8, 7°).
The recognition of this right can then lead to its instatement in a company agreement.
If no agreement exists, a charter must be drawn up after consulting the works council or failing that, the staff representatives.
If no agreement exists, a charter must be drawn up after consulting the works council or failing that, the staff representatives. While the law does not expressly stipulate consulting the industrial health and safety committee CHSCT, the latter’s involvement in the process is advisable (Labour Law, Art. L. 4612-1).
The charter must establish the minimum content of this agreement and the methods and procedures for enforcing the right to disconnect. It must also provide for “the implementation of actions for training and raising awareness about the reasonable use of digital tools, intended for employees, supervisors and the management”. (Labour Law, Art. L.6321).
In concrete terms, the agreement or the charter must implement the mechanisms of disconnection adapted to each company and to the staff concerned.
As such, the director of information systems’ involvement prior to the agreement is crucial to reaching the appropriate technical solutions. Obviously, one solution cannot fit all companies, given their difference in size, and more importantly, the national or international scope of their business.
Certain employers will prefer to establish the non-obligation to respond to one’s work email or messages outside working hours, by using features such as deferred sending, or blocking the messaging system during certain off-office hours. Other will adopt a system that informs the person who sent the messages outside normal working hours, and will organise a meeting between the sender and his or her N+1 to reassess his or her workload.
Whatever the company’s profile and the category of the employees concerned, it is important to at least establish that during the minimum daily and weekly rest time, and barring an emergency, it would be inappropriate to contact the person on work matters.
At the same time, it would be normal to provide for exceptions to the right to disconnect in the case of specific circumstances, such as an emergency or an exceptionally important matter to be handled.
Examples of the implementation of the right to disconnect
Some sectors or firms did not wait for Loi Travail to implement the right to disconnect.
On 1 April 2014, a sector-specific arrangement in the collective agreement of consulting firms (Bureaux d’Études Techniques) supplemented an agreement signed on 19 February 2013 regarding health and psychosocial risks. It provides for the right to disconnect for all employees covered by this agreement and requires the employer to ascertain that “the employee can disconnect from the remote communication tools placed at their disposal”.
Some company agreements such as the one established in Areva, provides that “each employee, regardless of his or her rank and position, will make sure to disconnect from the network and not send emails outside of normal working hours”.
The Loi Travail does not stipulate any specific penalties for the lack of an agreement or charter regarding disconnection. While the Loi Travail does not stipulate any penalties, it nevertheless gives employees a new argument to use in case of a dispute.
The employer must be able to show evidence that it has taken all the prevention measures given in Articles L. 4121-1 and L. 4121-2 of the Labour code pursuant to which a suitable work organisation must be set up avoid risks for employees.
The employer who fails to take the necessary and appropriate measures for disconnection shall be deemed as not having fulfilled its performance obligation in matters of safety to its employees, and may be held accountable.