The French government has presented before Parliament the “El Khomri” bill which, if passed, should modify a significant part of the employment law framework in France.
Among various provisions, the bill mentions the right, for the employees, to disconnect.
Indeed article 25 of the bill states that the employer has to regulate the employees’ use of digital tools in order to protect their private and family life as well as resting periods.
More specifically, it is provided that the terms and conditions related to the right to disconnect are part of the topics which must be discussed on an annual basis between the employer and the employees’ representatives, during the mandatory negotiations related to the quality of work life. The purpose of it is to ensure the respect of rest time provisions and minimum leave.
This does not entail an absolute obligation to stop all email exchanges during weekends or out of working hours. Instead, it should help employers defining new rules within the company in order to achieve a good work/private life balance.?
The bill provides that in companies with:
- at least 50 employees, the rules on the right to disconnect shall be set up in a charter drawn up after the consultation of the works council or staff delegates. The charter will provide, notably, the implementation of training programs in order to obtain a reasonable use of digital tools.
- less than 50 employees, the rules on the right to disconnect can be mentioned in a code of conduct.
Even if the bill will probably be amended, it is very likely that the above-mentioned provisions will remain unchanged.
This right to disconnect should enter into force in January 2017 but, as always in practice, companies will benefit from a tolerance to proceed to its actual implementation.
It is important to note that the right to disconnect has already been implemented in several sector of activities (in particular the IT sector) in order to control and manage employees’ workload, notably those subject to the working time system based on working days per year (called “forfait jours“).
The government has not included a penalty if the employer fails to comply with its obligations but such failure would certainly be used by employees for grounding their claims related to violations of health and safety protection (e.g. burn out matters). This, however, will only be an additional argument to justify the possible non-compliance of the employer with health and safety requirements. Indeed, even without this law, people working on weekends can already sue their employer for breaching health and safety rules.
Article by Christine Guillot-Bouhours, Julien Haure, Marine Hamon and Pauline Disdier of Orrick