The right to disconnect: the right not to be reached
While some people are back from holidays, others are still enjoying the last few days of idleness. As long as they are not over-solicited by emails or SMS, or tempted to look at their files...
Disconnect: to cut the connection, the link between two elements, to unplug, to turn off, to close. Disconnection: the action of disconnecting, the state of being disconnected. These definitions are far from the world of labour rights and the examples given by dictionaries refer mainly to computers (with the idea of ending a session). Yet, the Labour Code has appropriated disconnection to make it a right.
The right to disconnect: what is it?
The Court of Cassation recently stated that the obligation to remain reachable on a business mobile phone is not sufficient to characterize an obligation to remain at the employer's disposal. It is also not sufficient to exclude that the employee can freely go about his business. Thus, the right to disconnect or the right not to be reached or no longer to be reached is indeed a right recognized by the law and the courts.
The right to disconnection was introduced by the Labour Law of August 8th 2016: the collective agreement relating to the annual package in days or hours must include provisions relating to disconnection.
The collective agreement or charter on professional equality between women and men and the quality of life at work must provide for "the terms and conditions for the full exercise by the employee of his right to disconnect and the implementation by the company of measures to regulate the use of digital tools, with a view to ensuring respect for rest and holiday time as well as personal and family life".
To this end, the employer must take measures to enable the employee to disconnect.
The Ministry of Labor recommends a few measures:
Instructions for not answering e-mails or calls on your mobile phone;
Stand-by devices for computer servers outside working hours;
Activation of absence and redirection messaging;
Determining fixed hours for telecommuting employees;
Automatic signature indicating the non-imperative nature of an immediate response.
What is the purpose of all these measures? To protect the employee's health by guaranteeing his or her right to rest and to preserve the balance between private and professional life.
The courts had already recognized the right of employees not to be contacted outside working hours and more particularly during break times(4).
A right to disconnect for all
A reading of the texts relating to the right to disconnect shows that employees who use digital tools are more particularly targeted.
The right to disconnect is even more topical since March 2020 with the "forced" implementation of telework; it is moreover recommended in the telework agreements that are negotiated to include provisions on the right to disconnect.
However, all employees have a right to disconnect, i.e. a right not to be reached.
As the right to health and rest are rights recognized by the European Union and the Constitution, all employees have a right not to be reached during their rest time.
A right to be respected by the employer
During the employee's rest periods (weekly rest, paid holidays, daily rest period) the employer may not, in principle, call upon the employee.
There are some exceptions to this principle:
requests for access codes and passwords so that the company can continue to operate in the absence of the employee.
It is interesting to note that the Court of Cassation recalls that the employee is bound by an obligation of loyalty towards the employer, an obligation that continues during periods of suspension of the employment contract, and that consequently, he is required to provide the access codes that his employer has no other way of obtaining.
Since the contract is performed in good faith, the employer is obliged to respect the employee's rest periods.
If he fails to do so, he may be required to pay overtime or the days of rest not taken may not be deducted from the paid leave account.
Of course, this assumes that the employee has agreed to respond to the employer's requests, because outside the above-mentioned cases, the employee is not at fault for not responding to the employer's requests.
A right to be respected by the employee
While the employer must respect the employee's right to rest, the employee does not have to work during his or her holiday periods.
In practice, it is quite rare for an employer to punish an employee who works too much, even during his rest time. However, he must be vigilant. He must ask himself why the employee is working: is it, for example, because of an overload of work?
The employer must take the necessary measures to ensure the safety and protect the physical and mental health of workers.
In application of this text, the employer must, in particular, control the employee's workload, an obligation expressly provided for by law for employees benefiting from a fixed annual number of days. The fact that an employee is obliged to work during his or her rest time could constitute an overload of work and a lack of control by the employer.
Whatever the reason why the employee works during his rest time, whether it be overwork or choice, we can only advise the employer to ensure and verify that the employee benefits from his rest time and his right to disconnect, which goes far beyond the fact of closing his computer.