​In response to the increasing use of digital tools which blurs the line between professional life and personal life, a new obligation relating to working time has been introduced in France by the law of August 8th, 2016 relating to Work, Modernisation of Social Dialogue and Securitization of Professional Processes (commonly referred to as the "Labour Law").

Under this new obligation, employees will now have a "right to disconnect from the use of digital tools" to ensure "observance of rest time and leave as well as of personal and family life". The main provisions and sanctions of this new obligation are outlined below, along with our recommendations.

Overview of legal provisions

The right to disconnect will be implemented through several measures:

• Companies with more than 50 employees and a trade union representative: entering into effect as of January 1st, 2017, the right to disconnect will have to be included in mandatory annual negotiations with trade unions, in its part on gender equality and quality of life at work (article L. 2242-8 of the French Labour Code). Failing agreement, the employer will have to draw up a unilateral charter on this point, after having obtained the opinion of the works council or, failing this, the staff delegates;

• All companies implementing a specific working time arrangement known as "forfait jours" (fixed annual number of working days) will have to define the modalities by which the right to disconnect is implemented within their organisation (either through a collective agreement or through a unilateral charter). These provisions are applicable since 10 August 2016.

Applicable sanctions for non-compliance

Regarding the mandatory annual negotiations, companies are expected to include this matter in the negotiations but they are not required to actually sign a collective agreement on the right to disconnect. They will therefore not be sanctioned if no agreement is found. However, should the company disregard the obligation to negotiate, it will find itself criminally liable, with a maximum one year prison term and a fine up to 3,750 Euros for the company’s legal representative and a fine up to 18,750 Euros for the legal entity concerned (article L. 2243-2 of the French Labour Code).

Should these negotiations fail, companies will have to draft unilateral policies in order to effectively implement the right to disconnect and take measures to raise awareness on the proper use of digital tools. No dedicated sanctions are provided if the company refuse to put in place such internal policies – there will however be consequences for the forfait jours arrangements, as detailed below.

In this respect, companies applying fixed annual number of working days arrangements (forfait jours) will, in any case, have to include in any new collective agreement a clause relating to the right to disconnect – or failing this, define them unilaterally and communicate them to employees (in accordance with any existing charter). Failure to implement the right to disconnect would invalidate individual arrangements with fixed annual number of working days. Employees would therefore be able to file claims for hours worked above 35 hours per week over the last three years. The right to disconnect should therefore not be disregarded by companies using such working time arrangements.

Is the "right to disconnect" innovative?

While no other country in Europe has yet adopted a similar legislation, precedents already exist in France.

A common example is that of the Syntec collective bargaining agreement which included this right to disconnect in its April 2014 amendment to their working time agreement, with "an obligation to disconnect distant communication tools". Therefore, all companies within the scope of this collective bargaining agreement had to implement such obligation. The Wholesale Trade (Commerce de Gros) collective bargaining agreement also inserted such obligation in its addendum on working time dated 30 June 2016, which has yet to be extended by government decree.

Other local examples include Axa or Areva which have already granted a right to disconnect in their respective collective agreements as early as 2012.

Following the Syntec agreement, Bruno Mettling, HR Director at Orange published a report in 2015 on digital transformation and quality of life at work, a report which in fact became both a source of inspiration and a starting point for the 2016 Labour law. Bruno Mettling described disconnecting from work life both as a right and a duty (un droit et un devoir) and provided 36 creative proposals in order to innovate the French corporate landscape, many of which can be found in the Labour Law.

Furthermore, the intrusive nature of work in employee’s personal life has already been sanctioned in the past decade, as illustrated by French case law. The French Supreme Court ruled on this matter as early as October 2001, stating that "the employee is under no obligation to accept taking work back home, nor to set up work instruments and file processing at home" (Cass. Soc. 2 October 2001, n° 99-42727). The French Supreme Court also ruled in 2004 that "not being reachable outside of working hours on a personal cell phone is not of wrongful nature and cannot be used to justify dismissal on disciplinary grounds based on serious and negligent breach of duty by the employee" (Cass. Soc. 17 February 2004, n° 01-45889).

Our recommendations

Blocking e-mails past a certain time will hardly meet the business needs in an increasingly globalised world with international projects and work spheres. Instead, the Labour Law intends to promote an environment for negotiation and dialogue in order to find tailored solutions for each business organisation.

Examples of measures compliant with this new law include:

• Communicate that employees are not expected to respond to emails and should refrain from sending emails outside business hours.
• Support this message by providing appropriate training sessions to managers, to support work / life balance.
• Monitor excessive flows of emails outside business hours to identify employees to whom a reminder can be sent.
• Include gentle reminders in the form of pop-up boxes or authorise employees to set up an automatic response informing the sender that the message will be reviewed in the next morning or business day.
• Include in employees’ annual reviews an item about work / life balance and about effective implementation of the right to disconnect.