The right to disconnect, a false-new development to be taken seriously

Article L 2242-8 of the Labour Code establishes a right to disconnect to be observed by companies from 1 January 2017. It concerns companies of all sizes. It is not defined, however, and the intention seems to be to alert business managers, who should not see the measure as an additional legal constraint, but rather as a new reflection of the legislator’s desire to move towards collaborative labour relations.

In its note published on the emploi.gouv.fr website on 4 April 2016, updated on 24 October, the Ministry of Labour, Vocational Training and Social Dialogue states that with “the use of digital technology, which is now impossible to avoid in professional life, working methods are changing. The workplace no longer exists in many sectors; more and more employees are “connected” outside office hours; the line between private and professional life is thin; working time is no longer continuous”. It adds that 37% of working people use professional digital tools outside working hours according to an Eléas study (September 2016) and that 62% of working people want professional digital tools to be regulated. The need for a right to disconnect organised by the El Khomri law is thus clear. In an attempt to materialise this new right, the Ministry’s website states, “For example, the employees of a large company are not required to reply to e-mails outside office hours; another large company has set up a MOOC to train managers about the risks of permanent connection as well as days without e-mail. Incorporating the right to disconnect into the Labour Code thus allows companies to address the topic and to adapt to the new work methods”.

An issue beyond French boundaries

The right to disconnect is therefore not a rule which must be applied to employees within companies in a uniform manner, but rather the legal expression of the political will that companies must take the subject on board. The subject is not defined, but it is an important one, and it is not specific to French workers alone. Le Figaro Economie.fr published an article on 10 September 2014 entitled, “Salariés hyperconnectés : un enjeu de santé publique pas assez pris en compte”. The article presented Germany as a pioneer in this area, with a government bill on work-related stress that prohibits the sending of work-related messages during private periods such as vacations, weekends, or evenings. The same article quoted Marie Pezé, a French psychologist specialising in work-related stress, and the author of “Je suis debout bien que blessée: Les racines de la souffrance au travail”, which highlighted the “never up to date” syndrome.

In a 2016 article entitled “Exhausted But Unable to Disconnect” presented at the annual meeting of the Academy of Management (Anaheim, Aug. 5-9), the American researchers (Liuba Y. Belkin of Lehigh University, William Becker of Virginia Tech, and Samantha A. Conroy of Colorado State University) highlighted employees’ feeling of guilt when they see requests piling up that they cannot satisfy. They then start trying to free up additional time and differentiate less between work time and rest time. They end up becoming exhausted owing to lack of rest, but stay connected out of guilt. It must, however, be specified that roaming work tools are not the cause of this mechanism, and that many employees used to bring files home in the paper era.

The new technologies are both revealing and amplifying

They reveal situations which were not more benign in the past, but much rarer. They also reveal the incapacity of certain organisations to distinguish between what is important and what is urgent, and between what must be done and what can wait, what is useful and the expression of a power or an anguish of the hierarchy. The new technologies amplify the phenomenon by multiplying the number of employees concerned by these dysfunctions owing to the volume of information received by each. Some are tempted by constraining solutions. Daimler, for instance, offered to install software that automatically erases messages received by employees during their periods of leave, and Volkswagen prohibits the sending of messages to its employees 30 minutes after the end of their work day and 30 minutes before they start work. In the same vein, French companies have signed agreements aimed at limiting the use of roaming tools, whether reminding employees not to send e-mail outside normal working hours (Areva 2012) or establishing the principle of not sending or answering e-mail during a period when the work contract is suspended (Réunica, 2014)” or specifying in a QWL agreement that roaming tools should not be used during employees’ rest periods (Thalès). It is not certain that these measures reduce the feeling of guilt which may prompt people to circumvent them.

Dr Dominique Servant, a psychiatrist at the CHRU of Lille, author of several articles and books on stress and anxiety, including “Ne plus craquer au travail” (Odile Jacob, 2010) and “Le stress au travail” (Elservier Masson, 2013) calls for prudence, and warns that the temptation to generalise may be disastrous. A uniform measure does not take account of the disparities between situations and workers’ desires. He observes that hyper-connection certainly has dangers, but that it should not be forgotten, for all that, that some people want to continue to receive information. One may wonder whether it is right that they can no longer do so, and whether that really helps them to lower their stress levels.

In an extension of the normative decentralisation process begun many years ago, the French legislator chose not to provide a solution. The law entrusts to the two sides of industry the responsibility for identifying the most relevant measures. Thus, article L 2242-8 of the Labour Code sets out the following principle: “The annual negotiation on professional equality between women and men and the quality of working conditions concerns (…) the conditions governing the full exercise by employees of their right to disconnect and the implementation by the company of mechanisms to regulate the use of digital tools, in order to ensure the observance of leave and rest periods and the safeguarding of personal and family life”. If the negotiation does not succeed, “the employer draws up a charter, after obtaining the opinion of the works council or, failing this, of the staff representatives. This charter defines these conditions governing the exercise of the right to disconnect, and provides for the implementation, for the benefit of employees and managerial and supervisory staff, of training and education in the reasonable use of digital tools”. This text follows on from the national inter-professional agreement signed on 19 June 2013 entitled “Vers une politique d’amélioration de la qualité de vie au travail et de l’égalité professionnelle”. One of the announced “objectives” of this national agreement is “to make it possible, by a systemic approach, to improve the quality of working life and the conditions under which employees perform their work and, thus, the economic performance of the company”. More particularly, article 17 of the national agreement is entitled “Promoting an intelligent management of information technologies and communication for better company competitiveness, which respects the private life of employees”.

Make the difference between urgent and important

In this article, the two sides of industry observe that “Depending on the situation and the individual, these developments (new information and communication technologies) are perceived as ways of avoiding certain constraints, or as an intrusion of work into private life”. On the employers’ side, this national agreement was signed by MEDEF, CGPME and UPA (companies of all sizes are concerned by this subject), and on the employees’ side by CFE-CGC, CFDT and CFTC. The national agreement and the law are incentives to discuss the subject within companies, taking economic and organisational realities and human subjectivity into account. Two topics are addressed, the balance between private life (family life) and professional life on the one hand, and the safeguarding of a minimum rest period on the other. The employer’s obligation to take account of family requirements has existed for a long time, and the cases are many. It may be a question of establishing order with regard to the taking of paid leave (Labour Code, Article L. 3141-14) or with regard to redundancy (Labour Code, Article L. 1233-5), Sunday work to ensure one day for family life (Labour Code, Article L. 3132-3), the possibility of refusing to work at night when the change is incompatible with imperative family obligations (Labour Code, Article L. 3122-37), or rejecting a modification of working schedule (Supreme Court, Social Chamber, 12 March 2002, No 99-46.034; Supreme Court, Social Chamber, 6 May 2009, No 07-41.766; Supreme Court, Social Chamber, 3 November 2011, No 10-14.702, Bull. civ. V, No 246) or the obligation to take account of the requirements of the family life of the employee in the implementation of mobility clauses (Supreme Court, Social Chamber, 18 May 1999, No 96-44.315, Bull. civ. V, No 219). One may also cite the many cases where employees may suspend their work contract for reasons associated with the arrival of a child (maternity, adoption, or paternity leave, parental educational leave, leave for an ill child, or parental presence leave), or for reasons relating to an event like a marriage, the death or illness of a close relative (leave for family events, family solidarity leave, family support leave).

More recently, the legislator has required companies, in the annual negotiation on professional gender equality, to seek solutions supporting “coherence between professional life and family responsibilities” (Labour Code, Article L. 2242-5). The texts and court decisions relating to the protection of rest periods are also very numerous, and the object is not to quote them here. The upshot is that a new text, specific to the consequences of the use of new information and communication technologies, which does nothing but encourage debate, makes no real legal contribution. Nevertheless, companies must take into account the serious alarm which it sounds.
In an article published in November 2016 (Semaine sociale Lamy, n°1743) Luc de Montalvont (doctoral student preparing a thesis on workloads) observes that to provide for this right to disconnect in a text reveals a shortcoming in the effectiveness of the right to a continuous daily and weekly minimum rest, (Labour Code, Article L. 3131-1 and L. 3132-2). It can be added that to set forth this right to disconnect in a text also reveals a shortcoming relative to the safeguarding of the coherence between professional life and family responsibilities and the balance between work and private life.

The right to disconnect as a health protection measure

The 7th paragraph of article L 2242-8 of the Labour Code, which seems to create the right to disconnect, merely recalls obligations which the company is already required to fulfil. The French Supreme Court takes care to ensure this balance is preserved and, for example, recalled in 2001 (Supreme Court, Social Chamber, 2 October 2001, nº 99-42.727) that “employees are required neither to agree to work in their home, nor to install their work files and instruments there” and in 2004 (Supreme Court, Social Chamber, nº 01-45.889) that “not being reachable on one’s mobile telephone outside working hours is not a fault”. The Supreme Court also pointed out, regarding the forfaits jours (fixed-number-of-days) scheme, that the right to health and rest were constitutional rights. The right to disconnect is one of the methods chosen, within the framework of a systemic approach, as evoked in the national agreement of 2013, to encourage employers to really take into account the preservation of a certain balance between family life and professional life, and working time and rest time. The borders are not proposed however, and it seems that the extent and quality of the debate which each company will conduct will have at least as much importance as the result obtained, which can be neither uniform nor final. Indeed, pursuant to articles L. 4121-1 and L. 4121-2 of the Labour Code, which force employers to take measures to protect the health of their employees, the Supreme Court places on them an obligation to achieve a specific result in terms of safety. The Supreme Court judges however specified that this obligation is fulfilled if the employer demonstrates that it took the necessary steps to prevent the occurrence of a risk (Supreme Court, Social Chamber, 25 November 2015 No 14-24.444).

With the development of the new technologies, but also the changing needs of companies, which tend to replace the simple contributory force of employees by their commitment, or the development of individual or collective professional relationships, which tend to replace a traditional relationship of antagonistic submission by a collaborative relationship (at least in the texts), the conditions are met so that the work relationship, the very concept of work, changes radically. It may be an upheaval, but the point of arrival is not known. The right to disconnect is one of the entry keys offered by the legislator to companies so that they can direct this change. In this context, it is highly likely that companies which refused to anticipate the changes, and to begin and lead the debate, will be penalised.

Encourage balance between family life and professional life

The three stages suggested by the national inter-professional agreement of 19 June 2013 on the quality of working life may serve as a guide. Indeed, the national agreement proposes that companies carry out a preliminary diagnosis, define company-specific indicators, and assist supervisory and management teams. We are tempted to add a fourth axis, which would be to reassure employees. Thus, the right to disconnect cannot be viewed as the execution of a new legal requirement, but rather as a dialogue on the concrete effects of digitalization on the company. By way of example, in its charter of February 2016, Solvay undertook, before there was any requirement to do so, to “promote a work culture and organisation, and a mode of management and behaviours that encourage balance between work and personal life”. Within this framework, the observance of periods of absolute rest is a logical consequence, which does not prohibit solicitations for all that, including when the employee is not on call, in the event of a serious situation or emergency. As has been seen previously, the temptation of coercive (technical or legal) measures is not the panacea. Each company and each situation calls for its own solution. The technical part of the diagnosis, which may include a volumetric analysis of e-mail, may reveal major infringers, who could be the subject of an individualized approach. The approach may be delicate, because the parties concerned might be company officers or members of the management committee who have acquired the habit of processing large volumes of e-mails every Sunday evening, when it was quiet. This individual approach could be supplemented by collective mechanisms like pop-ups that remind the user of the proper times for sending e-mails, and prompting the question, after a certain hour, of whether the e-mail cannot be postponed until the following day or Monday. This soft technical approach, which leaves the party the option of proceeding nonetheless, is designed to raise awareness, modify social control and consequently, work practices, and ultimately, to teach people to take the other parties into account. It is a managerial stance, and the right to disconnect must be integrated into managerial know-how. This requires training, coaching, and professional co-development in the collective intelligence.

The mutual trust which the employer and the employee

From the point of view of formalism, the texts favour the company-wide agreement, at least the attempt at negotiation. If the negotiation succeeds, the question of the rules of validity of the agreement arises. The new rules of majority with a possible referendum will not be generalised until 1 September 2019, but they apply as from 1 January 2017 to agreements on “working time, periods of rest and leave”. The point is not settled by the current doctrine, but according to the drafting of the agreement, it may come under these new conditions of majority. If the negotiations fail or in the absence of a staff representative, the company is required to implement a charter. If the charter lists prohibitions and provides for penalties, then it constitutes an addition to the internal regulations and must then follow the adoption procedure in that regard, including the supervision of the labour inspection (Circ. DGT nº 2008/22 of 19 November 2008). Here too, the legal framework will depend on the content of the final text. Given the orientation suggested by the national agreement, it is highly likely that the majority of charters will not provide for penalties, and consequently, will not be subject to the procedure relating to internal regulations. Whatever the formalism selected, the company will not have fulfilled its obligation if the agreement or the charter does not form part of a genuine policy of assistance with regard to changing behaviour. Beyond that, it is probable that if an employee resists, and remains “over-connected” the employer will be held responsible. The Michelin agreement of 15 March 2016 introduced a system for detecting risky situations and organises a meeting with the management and, depending on the case, informs the human resources department and the N+2. A solution of this kind seems a wise precaution. A line of thinking to initiate the debate, or even for the text of the agreement or charter, would be to recognise the existence of three times: time that is exclusively professional (but does that really exist?), time of absolute rest, and private/professional time. The latter, depending on the momentary balance between professional and private obligations, could have a more or less professional or private dominant.

This raises the question of the mutual trust which the employer and the employee can have. According to article 1222-1 of the Labour Code “the work contract shall be performed in good faith”. This obligation applies to both employer and employee. Concerning the right to disconnect, the employer will have to make sure that operating processes, objectives, the means provided, and workload really make it possible for the employee to “disconnect”. Employees, for their part, will have to make sure they do not put themselves in danger or, conversely, that they make every effort that the employer can legitimately expect. Disputes relating directly to good faith are still rare, whereas the question of good faith underlies a great many differences between employers and employees. The evolution of the texts, whether they concern individual or collective work relations, which refer, directly or indirectly, more and more frequently to this notion will be necessarily accompanied by clarification by court decisions. At this stage of the right to disconnect, labour law is probably at the beginning of the materialisation of a qualitative change.

Jacques Uso
Office et Culture n°43 march 2017