Is the right to disconnect in France a sham?

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In 2017, nearly 8 out of 10 executives reported consulting their professional communications (e-mails, SMS, calls, etc.) during their rest time. Where do we stand after the pandemic? If almost one in two employees claims to be working more remotely, "unplugging" is probably even more complicated when our living room is also our office. So how does the right to disconnect apply to employees and what does the legislation provide for in this area? For employment lawyer Odile Blandino, the current texts do not allow employees to enforce their rights. Interview.

E.C: What are the obligations of employers in terms of the right to disconnect?

The right to disconnect was written into the Labour Code by the Labour Law, known as the El Khomri Law, five years ago. However, nothing specifies the terms of application.

It is in fact an obligation to negotiate: companies must define their own rules. In companies with more than 50 employees, the right to disconnect is included in the NAO, the mandatory annual negotiation on the quality of life at work. These discussions must result in an agreement signed by the employer and the trade unions. If the negotiations fail or if the company has fewer than 50 employees, a charter of good conduct must be drawn up by the employer after consulting the CSE, the social and economic committee.

Failure to comply with the obligation to negotiate is punishable by one year's imprisonment and a fine of EUR 3,750.

E.C.: What is in these agreements most of the time?

In particular, they contain training and awareness-raising actions aimed at all employees to inform them about the risks, challenges and good practices related to the use of digital tools.

For example, managers are trained not to send emails at weekends. All employees are also made aware of this.

Agreements can go so far as to provide for the implementation of binding tools to prevent the employee from logging on outside working hours. There is, for example, the blocking of servers between 8 p.m. and 8 a.m., a practice that is clearly more common in the United States. In France, this is still very rare, as companies refuse to implement such tools, which would be particularly inapplicable for employees working internationally in other time zones. Moreover, for them the right to disconnect is becoming a real challenge.

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                                      "There is a gap between the reality on the ground and the legislation.

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E.C: What do you think of the current legislation on working time and teleworking?

In my opinion, the current legislation does not allow telework to be properly regulated. Until the pandemic, we were in a pyramidal form of work where "face-to-face" was the rule. The generalisation of telework would imply changing the laws or at least making them evolve. In order to move towards greater autonomy for the employee in the performance of his or her duties and a necessary adaptation of the rules on the control of working time by the employer.

There is a gap between the reality on the ground and the legislation. The pandemic has changed the way we work; the legislative framework has been adapted for the time being, and we have been forced to be imaginative during this period, sometimes even to "tinker". But after the pandemic, we will have to ask ourselves the question: how can we regulate the new uses and adapt the legislative framework to this evolution?

E.C: How could the public authorities better supervise the development of hybrid work?

If telework were to become widespread, it would probably be necessary to review the legislation on working time as well as the modalities for ensuring the health and safety of the employee.

For example, it could be envisaged that the employees concerned by these organisational changes would acquire greater autonomy and work within the framework of missions that they would be free to carry out under the conditions that they themselves would define. But this would be a profound paradigm shift! No one can say today how we will work in two years' time.

E.C: What notable trends in your cases have you seen since the pandemic?

Before the pandemic, working time was already a central issue in litigation cases, particularly in the context of the application of fixed working days for managers or psychosocial risks for employees. This trend is likely to continue.

There is also a risk of an increase in the number of cases of suffering at work, as it seems that this period of unprepared teleworking, which we have just experienced and which continues in many large international companies, is causing a loss of socialisation for some employees.

There is additional fatigue and stress, resulting in increased anxiety at work. The exclusive focus on the screen and the loss of non-verbal, informal relationships clearly creates significant cognitive fatigue.

All these elements are likely to give rise to claims for compensation in the courts in the event of litigation. The challenges are numerous.

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                            "Moving from a management of control to a management of empowerment

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E.C: How do you build trust and accountability in this remote organisation mode?

In a culture where performance has until now been largely measured in terms of presence and working hours, one can legitimately wonder how to reconcile telework and recognition of work done without raising the question of trust.

Many observers consider that it would be opportune to make a transition from proximity and control management to empowerment management; this is a real challenge for employers.

E.C: In your experience, what have you seen of the exercise of the right to disconnect by employers?

In the context of my work as a trainer on good management practices in companies, I was confronted with a manager who every Sunday afternoon sent his team the schedule for the week. He didn't think for a second that he was actually sending an injunction to his staff in the middle of the weekend...!

In my professional life, when I am called upon on Saturdays and Sundays, I try not to answer!

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