The right to disconnect at the time of expanding remote work

The sanitary crisis caused by the coronavirus has forced a large number of employees to work from remote. While this form of work is becoming more common in many companies, the question of the employees’ right to disconnect, i.e., the right not to be contacted via digital work tools outside of working hours, is becoming increasingly sensitive.

The right to disconnect, which aims to protect the employees’ rest time and their personal and family life, was first implicitly recognized by case law, which, in 2004, ruled that the dismissal of an employee who could not be reached during non-working hours is unfair (French Supreme Court, February 17, 2004, n°01-45.889).

This right was then introduced into the French Labour Code in 2016, through the Act of August 8, 2016, which made it an obligation for employers to negotiate a company agreement governing the implementation of actions to regulate the use of digital tools, as part of the annual negotiation on professional equality between women and men and work life quality.

In the absence of agreement, employers must draw up a charter relating to the right to disconnect, after consultation of the Social and Economic Committee (article L.2242-17 of the French Labour Code). This charter must define measures to ensure that the right to disconnect is effective (implementation of time slots for disconnection, absence of obligation to answer late e-mails, deferred sending/receiving of e-mails, activation of absence and redirection messages, automatic signature indicating the non-imperative character of an immediate answer…), taking into account the specifics and the organization of the company. It must also provide for the implementation of training actions for employees and managers regarding the reasonable use of digital tools.

While failure to comply with the obligation to negotiate is punishable by a fine of up to EUR 3,750 and one year of imprisonment, there is no penalty if the employer has not established a charter.

However, in the event of a dispute, the employer’s failure to implement the right to disconnect may be indirectly sanctioned if the judges consider that the employer has not taken all measures to protect the employees’ health and safety (especially in case of moral harassment cases or work accidents, etc.).  

The employer must therefore be very conscious of that specific area of risks, particularly with certain categories of employees who are more exposed than others to the risk of ”over connection”.

This concerns in particular employees under a flat-rate pay agreement, whose working-time is considered in days over the year and not in hours over the day or week, since they do not have fixed work schedules. This is why the law requires that the collective agreement authorizing the conclusion of flat-rate pay agreements also determine the terms and conditions of the employees’ right to disconnect (Article L.3121-64 of the French Labour Code).

In a remote work organization, the boundaries between personal and professional lives tend to be blurred, as the employee who works remotely may be tempted to work at any time of the day, even on weekends.

In order to guarantee the teleworkers’ right to disconnect, the collective agreement or the charter governing telework must determine the time slots during which the employer can usually contact them (article L.1222-9 of the French Labour Code). 

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