By Frédéric CHHUM, Avocat at CHHUM AVOCATS and Marilou OLLIVIER, Elève-avocat at HEDAC
Since January 1st 2017, companies have to implement the procedures for the exercise by employees of their right to disconnect, in accordance with the provisions of the Labor / El Khomri Act of August 8th 2016 (Act No. 2016-1088 of 8 Aug. 2016).
But what is it really about and how will this right to disconnect be guaranteed?
1) The right to disconnect: why?
Starting from the observation that ICT (information and communication technologies) could constitute an important risk factor for workers’ health, the Labor / El Khomri Act of August 8th 2016 intended to create a new right to disconnect for employees.
The information overload associated with untimely emails, but also the confusion between work and private life resulting from the use of digital tools are many counterfeits against which the new dispositions intend to fight.
Article L.2242-8, 7 ° of the Labor Code now provides that: "The annual bargaining on professional equality between women and men and quality of working life shall concern [...] Exercise of the employee's right to disconnect and the establishment by the company of devices for regulating the use of digital tools, with a view to ensuring respect for rest periods and leave as well as personal and family life."
It thus appears that this new "right to disconnect" has two objectives:
Respect for rest and leave time; and
Respect for personal and family life.
The "right to disconnect", which is not defined by Act, can therefore be defined as the right of the employee not to be connected to a professional digital tool outside his working time in order to achieve this dual objective.
Moreover, it is precisely this aim, i.e protecting the health of workers, which explains why the consecration of the "right to disconnect" is one of the few measures that is not called into question by the detractors of this Act.
2) The right to disconnect: for whom?
2.1) For which companies?
The right to disconnect is part of the NAO (mandatory annual bargaining), and more specifically of the "equality and quality of working life" component. Negotiations on this subject are necessary for companies employing at least 50 employees (Article L 2242-8 of the Labor Code).
In addition, all companies in which there are employees whose working time is determined on the basis of days rather than hours will have to negotiate a clause on the right to disconnect irrespective of their size (Article L.3121-65 of the Labor Code).
2.2) For which employees?
All employees without exception are affected by the "right to disconnect".
However, it must be admitted that the procedures for exercising this right may differ according to the category of employees concerned.
Firstly, the Labor Act itself provides special treatment for employees whose working time is determined on the basis of days, since it provides that the collective agreement authorizing the use of this working time calculation method must now also contain the conditions under which the employee may exercise that right (Articles L.3121-64 and 3121-65 of the Labor Code).
Secondly, senior executives are a second category of employees which must be considered in a specific way. On the one hand, they are by nature neither subject to the provisions related to hours of work or rest. On the other hand, the responsibilities attached to their duties justify that their right to disconnect may be reduced compared to other employees. However, these particular employees must not only set an example but above all respect the right to disconnect of their subordinates (Article L.3111-2 of the Labor Code).
Finally, teleworkers should be given special attention, since it will essential be for companies to combine the stipulations of the collective agreements, which must provide for the time slots during when the employer can usually contact the employee on telework (Article L.1222-10 of the Labor Code) and those relating to the right to disconnect.
3) The right to disconnection: how?
3.1) Implementation of the right to disconnect by collective agreement or unilateral charter
The right to disconnect as provided for in the Labor Act must be implemented:
Either by a collective agreement negotiated with the representative trade unions;
Or, in case of failure of negotiations, by a charter drawn up unilaterally by the employer after consultation with the Works Council or, failing that, by the staff representatives.
The Act of August 8th 2016 introduced the right to disconnect in the context of mandatory negotiation between the employer and the social partners.
Companies should try to reach a negotiated agreement but have no obligation to reach it.
In the event of failure of the negotiations, the employer will still be obliged to draw up unilaterally a charter guaranteeing the effectiveness of the right to disconnect.
3.2) Absence of specific sanction for an employer who does not fulfill his / her new obligations
Failure to comply with the obligation to negotiate may give rise to a penalty of one year imprisonment and a fine of € 3,750 (Article L. 2243-2 of the Labor Code).
However, apart from the sanction traditionally attached to the employer's failure to comply with its obligation to negotiate, the Labor Act did not intend to impose a specific sanction related to the right to disconnect.
Thus, the employer who refrains from drawing up a charter after the failure of the negotiations cannot be sanctioned by this fact alone.
The next step is to determine the consequences which the case Act will attach to the fact that the employer has failed to fulfill its obligations in the context, for example, of an individual dispute over non-compliance with rest periods.
3.3) Examples of measures put in place by agreements prior to the entry into force of the Labor Act
While the outlines of the exercise of the right to disconnect remain unclear, it is already possible to draw inspiration from the agreements concluded by certain companies prior to the Act on this subject.
Indeed, many large groups (Solvay, Thales, Orange, Société Générale, etc.) had already included the right to disconnect in the field of collective bargaining and had reached agreements which provide for the absence of obligation to respond to messages, or the obligation to justify of an emergency to use professional messaging and / or business telephone outside defined time-slots.
Companies that have to negotiate for the first time on the theme of disconnection can usefully draw inspiration from it.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
. Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
. Nantes : 41, Quai de la Fosse 44000 Nantes - Tel: 02 28 44 26 44
e-mail : email@example.com
Blog : www.chhum-avocats.fr