By Caroline Froger-Michon, Partner, CMS Paris and Christopher Jordan, Partner, CMS Cologne
Digitalisation is well under way and has an increasing impact on the working environment and everyday life throughout the world. Smartphones, however, are not just convenient; they also mean that employees are available 24/7 resulting in significant burden on private and family life and sometimes even in health related consequences. Some employees report suffering from COS (Cognitive Overflow Syndrome).
However, many employers have a significant interest in their employees' availability. In addition to the advantage of greater productivity, availability may often be crucial in the competition for customers, especially in critical situations. Even employees often fail to take a critical look at this issue and its reported risks. For many employees, it is a matter of course to check or even reply to the emails they have received after work. Employees often deliberately choose to be available around the clock because they want to stay fully informed at all times. In particular, many employees also expect that their professional life will become more flexible owing to digitalisation. Against this background, it does not seem strange that constant availability is still so all-pervasive – despite possible risks.
There are no standard regulations addressing this subject matter throughout Europe. Directive 2003/88/EC of the European Parliament and the Council dated 4 November 2003 at least provides the Member States of the European Union with certain guidelines to ensure safety at work and protection of health with regard to working hours; this must be implemented by the national lawmakers. For instance, the Directive stipulates that each employee must be entitled to a minimum rest time of eleven hours. It also stipulates that the Member States must take the necessary measures to prevent the maximum limit of 48 working hours per week from being exceeded. However, apart from these minimum requirements, the Member States are free to govern the employees' working hours by statutory law and to prevent risks associated with constant availability.
Situation in France
By Caroline Froger-Michon, Partner, CMS Paris
A statutory recognition of the right to disconnect
Although the French Supreme court has already recognised the employees’ right to disconnect since 2004, this right has only been recently introduced in the French Labour Code by the Law of August 8, 2016.
In force since January 1, 2017, the right to disconnect which is not legally defined may be described as the employee’s right to disconnect from any digital device or tool used for professional purposes such as Smartphones, email or the internet during, his or her free time and vacation. The right to disconnect benefits, in principle, all employees, regardless of their professional category and the related responsibilities.
Companies concerned by the mandatory implementation of the employees’ right to disconnect
The law of August 8, 2016 obliges certain companies to set out the terms and conditions enabling their employees to fully exert their right to disconnect and to put into place mechanisms destined to regulate the use of IT-devices in order to ensure compliance with the employee’s mandatory rest periods, vacation as well as his or her personal and family life.
The companies concerned are:
- companies having a workforce of at least 50 employees and which are as such subject to the annual mandatory negotiation on professional equality and quality of life at the workplace.
- companies implementing day-off agreements (so-called “convention de forfait jours”) according to which the employee’s working time is computed in terms of days with no reference to a number of hours worked.
In light of the above, one might be inclined to conclude that a company, irrespective of its size/headcount, which is deprived of employee representation bodies and which has not entered into day-off working time agreements, falls outside the scope of the obligation to grant, via collective agreement or, failing this, by unilateral decision, a right to disconnect to the employees.
However, drawing the conclusion that these companies are exempted from all obligations with respect to the right to disconnect would be false. Indeed, Article L. 2242-8, 7° of the French Labour Code provides that the implementation of the right to disconnect is notably destined to ensure compliance with the employees’ entitlement to mandatory rest and paid vacation, and hence to protect the employees’ health. Consequently, and in the event the employer fails to comply with the aforementioned obligation, employees could claim a violation of their employer’s duty of care. Therefore, and even though these companies are not formally obliged to grant such right, it is advisable to define, in writing, the rules regarding the right to disconnect and this within the framework of each employer’s general obligation to prevent the occurrence of professional risks.
In this respect, it is important to highlight that pursuant to the Macron reform and its related ordinances of September 2017, employers of companies having less than 11 employees, can hence submit a draft agreement to the employees covering all topics which are open to negotiation, such as the right to disconnect. Such agreement will be valid if ratified by a majority of two-thirds of the company’s personnel.
Implementation of the right to disconnect – Negotiation first
The law of August 8, 2016 leaves it up, in the first place, to the social partners at company level, i.e. the employer and the trade union delegates, to negotiate on both, (i) the modalities of implementing the right to disconnect and (ii) the setting up of devices regulating the use of IT-devices in order to notably ensure the employees’ right to have his private and family life respected.
In case the negotiation fails, employers must implement an internal policy, which effective implementation will be subject to the prior consultation of the Works council, or failing this, the staff delegates. This policy must set forth the terms and conditions of exercising the right to disconnect and simultaneously provide for the implementation of training actions destined to raise manager’s awareness to ensure a reasonable use of digital devices.
The legal value of such policy is that of a unilateral undertaking. French employers should be particularly vigilant in case their policy imposes obligations on their employees and provides for sanctions in case of non-compliance with same. In such a case, the policy can be deemed an addendum to the companies’ internal regulations and must thus be submitted to the Works council and in principle to the Health and Safety Committee for consultation and to obtain their respective opinion before being sent to the Labour inspector. Non-compliance with this procedure renders the Policy unenforceable against the employees.
Measures to ensure a genuine right to disconnect – a multitude of possible actions
Irrespective of whether these measures are provided for by a company collective agreement or have been unilaterally elaborated through a policy, employers have to ensure that their actions taken are serious and sufficient in light of the risks existing within their companies. This shows a certain ambivalence of “disconnection”: besides being a right granted to the employee destined to ensure the respect of his or her personal and private life, disconnection simultaneously constitutes a genuine duty for employers in the framework of their absolute safety obligation towards their employees. The array of possible measures to render the right to disconnect effective is vast, enabling employers to adopt actions which are best suited for their specific situation and economic reality.
For instance Natixis, a large actor in the financial sector, has attached a policy entitled “For a proper use of emails”, inviting its employees to disconnect in particular during the weekends and vacation periods and recommends to be selective regarding the recipients of emails and to ensure clarity and concision of the messages sent. The French Bank, Société générale, undertakes to draft and ensure the distribution of a “Policy on the proper use of electronic messaging” and implements training actions aimed at raising the employees’ awareness with regard to the use of technological devices. Such training actions are indeed a mandatory part of the Policy which must ensure that the company’s personnel, blue-collar workers and executives alike, are effectively trained to make a reasonable use of digital devices made available to them.
Situation in Germany
By Christopher Jordan, Partner, CMS Cologne
No statutory regulation in Germany
Unlike French labour law, German labour law does not contain any statutory "right to disconnect". However, laws such as the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work (Arbeitsschutzgesetz) and the Working Hours Act (Arbeitszeitgesetz), plus Directive 2003/88/EC of the European Parliament and the Council of 4 November 2003 (the Working Time Directive), set certain legal limits with regard to the constant availability of employees.
The primary goal of the European Working Time Directive and the German Working Hours Act is the protection of employees from health risks arising from working beyond the limits, but the protection of human dignity and the employees' rights to privacy by warranting sufficient time off is also important. These goals must be considered with regard to the legal classification of constant availability outside normal working hours. In this respect, constant availability is similar to so-called on-call duty. According to the case law of the Federal Labour Court, this is the case when an employee is obligated to stay within his own residence or alternatively at another place of which the employer must be notified in order to be able to resume work when called (see Federal Labour Court, judgment of 26 February 1958 – 4 AZR 388/55, BeckRS 1958, 103186). Following this case law, the on-call duty periods are generally considered part of the rest periods. Only if the employee is actually called on to perform work is the time considered working time. Although the employee who is voluntarily available during his off-work time is, as a rule, not obligated to be available, the similarity to on-call duty is still obvious, so an application of the regulations concerning working time mutatis mutandis appears reasonable. Therefore, the period of time during which an employee who is always available actually works must be deemed working time and must be taken into account with regard to the maximum working hours permitted in the Working Hours Act. There is a lack of consensus regarding the issue of whether marginal work constitutes an interruption of the rest period, thus making a new rest period of eleven hours, as required under the Working Hours Act, necessary. Nevertheless, the German Working Hours Act at least provides for a comprehensive ban on work on Sundays and public holidays, also for this type of work, and the employer must pay attention that this ban is complied with. If the employer does not follow these rules, he is committing a regulatory offence according to § 22 of the Working Hours Act that can carry a fine of €15,000.
In 2016, however, the Ministry of Labour and Social Affairs provided the white paper "Work 4.0" ("Weissbuch Arbeiten 4.0"), which sets out a guideline to balance the flexibility needs of companies and workers while at the same time maintaining health and safety at work. In this context the Minister of Labour and Social Affairs, companies, social partners, civil society and academia reached a broad consensus regarding the fact that working time must be organised in a way that better takes into account particular and differing time needs. As a result, it has been pointed out that there is no need for further legislative action. According to the parties involved in the project, the best way to address the issue is to negotiate collective agreements, making flexibility compromises and drafting works agreements. Furthermore, it has been concluded that a real far-reaching reform would be a Working Time Choice Act (Wahlarbeitszeitgesetz) containing provisions regarding protection from overwork, the dissolution of work boundaries, time sovereignty and flexibility compromises. This would give employees more options regarding their working time and location and to some extent a possibility to deviate from the applicable provisions of the Working Hours Act. However, so far no concrete legislative proposals have been presented.
The unions' perspective
Although trade unions – such as IG Metall – have been demanding stricter statutory provisions, there are no collective agreements addressing the subject of availability of employees explicitly. IG Metall addressed the dissolution of boundaries between working time and private life at a conference in October 2017. However, until now, no collective bargaining agreements addressing this subject have been negotiated.
(Internal) Policies on Company Level
The aforementioned statutory working time limits are in fact weakened, especially in establishments with flexible working time models or even trust-based working hours. This results in a legal grey area regarding the circumstances under and the times at which employees must be available. However, according to the Federal Ministry of Labour and Social Affairs, the legal framework offered by existing statutory provisions is sufficient. ("Weissbuch Arbeiten 4.0") Which does, of course, not mean that there is no need for any actions. Stricter statutory provisions cannot meet the different requirements of various business structures and areas of work. To solve the problem, it is thus most practical to allow companies or the parties to collective bargaining agreements to give concrete form to the legal framework conditions in internal rules or collective bargaining agreements, respectively.
To this effect, various regulatory models have become established at company level, complementing the legal framework conditions existing in Germany: The German Works Constitution Act provides for a codetermination right of the works council with regard to working hours. This also includes availability and the issue as to whether hours worked after work, during leave or at weekends are considered working hours. Therefore, availability can be regulated by way of works agreements. It is therefore important to find possible compromises between fixed and flexible working hours in cooperation with the works council. In this respect, it seems feasible, for example, to clearly define the hours during which it is still possible to reach the employee or to introduce subsequent remuneration for the employee's willingness to be available also outside working hours.
Various models have been developed in German companies, in which employee representatives are strong for historical reasons. BMW, for example, has set out in a works agreement that employees may agree with their respective superior on fixed hours during which they are available, and mobile activities carried out during off-work time are credited to their working hours account. But the employees are allowed to insist on their right to inaccessibility during holidays, the weekend and after end of work.1 With regard to employees (subject to a collective bargaining agreement) who have received a work mobile, since the end of 2011 Volkswagen turns off the mail server for all smart phones half an hour after work and does not switch it back on until half an hour before work.2 Porsche now wants to go beyond those regulations of the other companies and plans to strengthen the rules of the mother company Volkswagen. The works council of Porsche plans to implement a works agreement, such as already in force at Volkswagen, which stipulates that the employees' mail server must be switched off between 7 p.m. and 6 a.m. as well as during weekends and holidays. Furthermore, Porsche intends to establish a system which sends the email back to the sender and deletes it automatically from the employee's mail account. This measure is supposed to ensure that the employees do not have to go through hundreds of emails in the morning. Important mails have to be sent again during working hours. The planned works agreement is to apply to all employees paid according to collectively agreed pay scales; employees who are not subject to collective bargaining agreements, such as managers, would not fall under the scope of this agreement. According to the works council chairman, a manager receiving a high bonus can be expected to answer an email in the evening.3 At Daimler all emails the employee receives while the out-of-office message is enabled are, in fact and already since 2013, deleted. The sender gets the out-of-office message and has to send the email again during working hours.4 Other companies have also found different solutions at company level. These solutions range from mandatory individual agreements between superiors and employees to unilateral obligations on the superior's part to general agreements applicable to all employees or a group of employees of an establishment. Deutsche Telekom decided already in 2010, after reports on many employees’ suicides of France Télécom due to a working atmosphere of fear and stress, that employees are not obligated to check their emails after working hours, but there are no technical countermeasures to ensure it.5 Bayer, BASF and E.on declared explicitly that their employees do not have to check their smartphone or emails after work but, in contrast to other companies, there is no concrete works agreement regarding this subject.6 With regard to all employees and not only the employees below the higher management level, Henkel decided that nobody has to check their emails after official working hours. Even Henkel's CEO declared that on one day of the week, on Saturday, he himself would not check his emails, and prohibited all executive board members to contact him between Christmas and New Year's Day.7 Puma and Deutsche Bank explicitly do not expect that employees can be contacted by email during their holidays. Within Deutsche Bank, it is possible to set an out-of-office reply in your email account.8 Siemens is more flexible and does not have any fixed agreements. Employees decide on their own if they want to be available or not after working hours because in Siemens' opinion, all the employees are responsible. But in general, Siemens does not require the employees to check their emails after working hours or during holidays.9 Evonik uses an "email brake" (E-Mail-Bremse) set out in a works agreement which applies to all employees of the company. The employees, together with their supervisor, define a period of availability. Beyond this period, the employees do not have to answer emails, but the email servers are not turned off and emails are not blocked.10
1 see Spiegel Online, 17.02.2014, „Erreichbarkeit nach Dienstschluss: Deutsche Konzerne kämpfen gegen den Handy-Wahn“.
2 see Spiegel Online, 17.02.2014, „Erreichbarkeit nach Dienstschluss: Deutsche Konzerne kämpfen gegen den Handy-Wahn“.
3 FAZ, 18.12.2017, „Porsche-Betriebsrat fordert Löschung von E-Mails in der Freizeit“.
4 see Spiegel Online, 17.02.2014, „Erreichbarkeit nach Dienstschluss: Deutsche Konzerne kämpfen gegen den Handy-Wahn“.
5 see Spiegel Online, 17.02.2014, „Erreichbarkeit nach Dienstschluss: Deutsche Konzerne kämpfen gegen den Handy-Wahn“.
6 see Spiegel Online, 17.02.2014, „Erreichbarkeit nach Dienstschluss: Deutsche Konzerne kämpfen gegen den Handy-Wahn“; Focus Money Online, 16.04.2014, „Büroverbot, Mailsperre, Zwangsurlaub: So verhätscheln deutsche Konzerne ihre Mitarbeiter“.
7 see Spiegel Online, 17.02.2014, „Erreichbarkeit nach Dienstschluss: Deutsche Konzerne kämpfen gegen den Handy-Wahn“.
8 see vdi nachrichten, 24.01.2014, „Ständige Erreichbarkeit ist keine Pflicht“; Focus Money Online „Stress nach Feierabend - Permanente Erreichbarkeit: E-Mail, Anrufe, SMS“.
9 see RP Online, 06.12.2012, „Keine Dienst-Emails im Urlaub“.
10 see Evonik Press Release, 19.08.2014.
Situation in Bulgaria
By Maya Aleksandrova, Senior Associate, CMS Sofia
No statutory regulation outside of overtime laws
Bulgarian labour law does not explicitly guarantee the "right to disconnect". However, the Constitution, Labour Code, the Ordinance on Working Hours, Rest and Leave, and the Ordinance on the Regulation of On-call Time and Availability of Employees set limits on the amount of time employers can expect employees to be available outside of regular work hours.
As a fundamental principle, the Bulgarian Constitution specifies that employees have the right "to rest and leave under terms, and according to a procedure, established by law".
As a result of this principle, the Bulgarian Labour Code lays down strict provisions concerning the duration of the working week, which depend on the particular work model in force. The standard working time is 40 hours per week and overtime is generally forbidden, except in special cases. The normal length of the working day is eight hours.
In addition, the law regulates the allocation of day and night hours to ensure employees have adequate time for recreation.
Furthermore, the Bulgarian Labour Code stipulates the minimum length of daily and weekly breaks, and the minimum interval between them, guaranteeing employees the right to sufficient leisure time and a healthy balance between work and family. According to the Code, employees are entitled to a 30 minute lunch break, not included in work time, a break each day of at least 12 hours, and one 48 hour break per week.
Availability outside normal working hours only applies to specific positions in specific sectors, and only when the type of work requires it. This includes work in the health sector and transport services. In such cases, when an employee is off of work premises (i.e. outside of his contracted hours), the employer is permitted to call only if doing so is necessary for the fulfilment of his employment duties.
If the employer requests the fulfilment of employment duties during this time, the employer must remunerate the employee at the rate applicable for overtime work. If the employee has only been passively available, the employer is required to compensate the employee with payment at a reduced rate, as defined by the law.
The Ordinance on the Regulation of the On-call Time and Availability of Employees fixes the maximum time an employee must be available outside ordinary working hours at 100 hours per month, 12 hours per day, and 48 hours per weekend. In order to safeguard an employee’s life from significant disturbance, availability cannot be requested for two consecutive days or more than one weekend per month.
In practice, there are a variety of company models ensuring an employee’s right to disconnect, and companies may establish internal labour rules offering more favourable provisions than the law requires.
Situation in Portugal
By Susana Afonso, Partner, CMS Lisbon
Government wants rights protected in Collective Bargaining Agreements
In early 2017, a law in France came into force requiring companies with more than 50 employees to determine the time they are entitled to be offline.
This important French legislative measure led the Portuguese government to question whether it should implement a similar principle.
After a review, the government and specialists in labour law argue that this is above all a matter to be negotiated within the scope of Collective Bargaining Agreements. While I support this view, it is also good practice to define these limits in the early negotiation of the employment contract between a company and an employee.
The Portuguese Labour Code is already clear about "normal working time", "rest time", and the limits on working time, which require a minimum of 11 consecutive hours between two consecutive daily periods of work. It does not make sense for Portugal to legislate beyond these limits, which fulfil the necessary framework for "rest time".
Throughout successive legislative changes, the Labour Code has introduced flexible working time arrangements, such as the ‘bank of hours’, the adaptability regime, and the extension of exemptions from working hours. In all these mechanisms, ceilings and minimum rest periods are defined.
Even though it may make sense to be even more assertive for the "right to disconnect", I believe that legislating this right will only be appropriate when taking into account the specific characteristics of the sector of activity, and the functions performed. Hence, companies and employees should agree on the organisation of working time, and the best policy within each business structure.
It may not be in Portugal’s best interest to be regulated by an outdated labour code in this time of technological and sociological evolution of companies and labour relations. Furthermore, it may be better if legislative change addressing this specific issue is made one day, creating a regulatory background supporting Collective Bargaining Agreements.
It seems that in Portugal a solution will not be found by merely amending the existing law. Regardless of the course taken by the government, it is clear this is not the last time this subject will be discussed.
Situation in Spain
By César Navarro, Partner, CMS Madrid and Eloy Martín de Lucía, Associate, CMS Madrid
Employees' “right to disconnect”: a lack of regulation in Spain
In this increasingly competitive market with its sophisticated information and communication technology, it is inevitable that new workplace challenges will arise.
In Spain, it has become increasingly common for employees to use electronic tools and IT devices to keep in touch with employers and clients during their time off. The practise is so common it has come to the point where employees are now expected to be available long after their working hours are over. Consequently, technology is contributing to occupational burnout.
In some countries such as France, legal measures have been implemented to guarantee an employee's right to disconnect once the working day is over. French labour law states that workers have the right not to reply to company emails or phone calls once the working day has finished.
In contrast, Spanish law does not expressly regulate an employee's right to disconnect. Nevertheless, article 40.2 of the Spanish Constitution rules that public authorities must ensure safety in the workplace by guaranteeing necessary rest time through limits on working hours.
Article 34 of the Spanish Workers’ Statute states that the distribution of working hours must respect mandated daily and weekly rest periods, and employers must respect their employees’ time off.
Similarly, article 14.2 of Law 31/1995 on Occupational Risk Prevention states that employers must guarantee the health and safety of employees during work in every way, and that work equipment refers to any machine, apparatus or instrument used in the work place.
The employer, therefore, must take into consideration work stress caused by company mobile phones and computers. Hence, employers have an implicit obligation to protect employees from any negative effects and psychological risk arising from the use of workplace technology.
From an EU perspective, Directive 2003/88/CE states that working hours constitute the period when an employee cannot freely use his time and must be available at his workplace or at the employer’s disposal to perform his functions.
By extension, judicial precedents from the European Court of Justice (ECJ judgment of 9 September 2003 [C-151/2002, ECJ 2003?]) have determined that the rest period is characterised by the absence of any obligations by employees to their employer, which impedes employees’ right to use their time freely and without interruption according to their own interests. By this reasoning, when an employee is available and working by means of new technology during his rest period, he is not effectively enjoying his required time off.
In view of these regulations that have established minimum and uninterrupted rest periods, employees have the right to refuse to continue working after the work day and during weekends, in accordance with their broader right to enjoy their resting hours.
Self-regulating the right to disconnect and current business trends
Revealing how new technology is also impacting collective bargaining, the Supreme Court stated in 2007 that it is possible to self-regulate the right to disconnect in an employer's internal policy code.
For the first time, the multinational French company AXA has regulated the right to disconnect in its Collective Bargaining Agreement, published in the Official State Bulletin of 10 October 2017, which in article 14 recognises employees’ right to not respond to any email or work messages outside of working hours.
Other companies, such as France's Areva, have recognised the right to disconnect by any employee at any level, and prohibits employees from connecting to the firm's network and sending work emails outside of working hours.
France has forced these companies to regulate this right by way of collective bargaining agreements or internal corporate policies in order to comply with French regulations. France's actions, however, could serve as an example for future legislative efforts in Spain.
Other countries are already following France's lead. In Germany, Volkswagen stated in a 2011 internal policy that its employees are entitled to disconnect from work email from 18:00 to 07:00 on workdays.
Companies aware of an employee's right to disconnect have begun to pass their own regulations to adapt to this new reality, and are prepared to comply with right-to-disconnect laws, such as in France.
In conclusion, the right to disconnect is implicitly included in Spanish employment law and European regulations. Many employers, however, still have the expectation that employees should be available by email or mobile phone at almost any time. Hence, contact during non-working hours is fast becoming socially accepted behaviour, especially among office employees and managers.
From a practical standpoint, it may be necessary to regulate this right in Spanish legislation to clarify that employees are not expected to be permanently connected or available through their mobile devices.
Regulating this right, however, would only make sense if specific policies and measures are also established to protect an employee's right to disconnect, and to penalize non-compliance. Merely declaring the existence of this right is not sufficient to guarantee its application and effectiveness.
In the absence of specific regulations, collective bargaining can play an important role in protecting and enforcing this right by regulating it through collective bargaining agreements or internal corporate policies.
Through collective bargaining, the administration can also be urged to protect this right through corresponding legislation.
It is clear that having additional legal protection as in France would improve employee health and prevent the negative effects and psychological risks derived from the overuse of workplace technology.
For more information on the legal issues surrounding employee rights to disconnect in Spain and the EU, please contact us.
Situation in Turkey
By Döne Yalçın, Partner, and Abra Sinan, Senior Associate, CMS Istanbul
Being connected constitutes overtime work
Currently, Turkish Labour Law (“Law”) and court precedents do not specifically recognise an employee’s right to disconnect. When an employee remains connected, and continues to perform work with electronic devices after regular working hours, this employee is effectively performing overtime work.
The Law regulates overtime work in detail, and an employer can request that employees remain connected outside their regular working hours only under certain conditions.
According to the Law, the maximum working time for full-time employees is 45 hours per week and 11 hours per day. Unless otherwise agreed upon between employee and employer, every day of the week except Sunday is considered a working day. An employer may ask an employee to work during weekdays and Saturdays, as long as the working hours remain within weekly and daily limits.
Work exceeding the weekly 45 hour limit is deemed overtime. The Law generally allows employers to request overtime work without additional compensation if employees have given written consent under the original employment agreement or a separate one. Even in such cases, however, overtime work is limited to 270 hours per year. Furthermore, employees who receive minimum wage must both consent to and be compensated for any overtime work, and 270 hours of overtime work without additional compensation cannot be included in their employment agreements.
Where an employee and employer have not agreed to include the 270 hours into their employment agreement or where the overtime work performed by an employee exceeds the 270 hour limit, the employee is entitled to receive overtime payment. In this case, the payment for each hour of overtime is 150% of the employee’s gross hourly rate during regular working hours. For any work performed on Sundays, the employee is entitled to 250% of his gross hourly rate during the regular working day.
Where overtime work is performed, employees may also opt to receive time off in lieu of overtime pay. The employee is then granted 90 minutes off for each hour of overtime.
Finally, where the work performed by an employee exceeds the daily 11 hour limit, this qualifies as “excessive work,” which could result in the employer receiving a monetary fine. Furthermore, if an employee suffered an occupational accident due to excessive work, the employer could also face criminal or civil liability.
Situation in Luxembourg
By Audrey Bertolotti, Partner, CMS Luxembourg
The new digital era has had a tremendous impact on working practises. With globalisation and digitalisation, work devices – mobile phones and laptops that are always open and on – have made their way into the private lives of employees.
As a result, the boundary between private and professional life has been blurred, and employees are increasingly subject to conflict between their private and work lives, which was borne out by a 2017 survey by the Luxembourg Chamber of Employees.
In response to this mounting tension, on 24 July 2018 the Luxembourg Chamber of Deputies received a petition to introduce the right to disconnect into labour law, and to define clearly the boundary between work and private life in order to ensure compliance.
No statutory regulation in Luxembourg
No laws or regulations currently exist in Luxembourg giving employees the right to disconnect even though the line between the work and private life of a worker is currently unclear.
This issue, however, is growing in awareness and political importance across Europe. On 24 July 2018, the Luxembourg Chamber of Deputies received a petition aimed at introducing the right to disconnect into Luxembourg labour law and to define clearly the limit between work life and private life .
The measures set out in the petition include:
- >Companies will cease sending emails from their message servers to staff beginning thirty minutes before the end of the working day, or set up a system where certain employee emails are marked as urgent and a process allowing staff to report communications received from managers after working hours.
- Employees will receive compensation for digital burnout equivalent to at least one quarter of an hour of pay per email received from management thirty minutes or later after working hours, and additional compensation of at least one quarter hour of pay if the email requires an answer before the following business day.
According to the petition, the right to disconnect applies to all employees and in no case will companies be able to introduce contractual conditions forcing employees to waive their right to disconnect, reduce the salary and bonuses of employees for failure to reply to after-work emails, or be penalised for requesting compensation for digital burnout.
If enshrined into Luxembourg labour law, employers could face heavy fines for breaches, and employees dismissed for disconnecting after hours could undertake legal actions to render their dismissals unlawful, which might result in reinstatement in their former positions.
Whether a law will result from this petition is still unclear. The petition currently has 399 signatures, which is short of the 4,500 required to request parliamentary debate. The petition closes on 4 September 2018.
But there is momentum for change. France has already introduced a law enshrining this right, and legal analysts suggest that Luxembourg could be next.
The petition aside, two laws already exist in Luxembourg, which regulate the working hours of employees.
Under the Luxembourg Labour Code, effective working time may be defined as the hours employees are at their employers' disposal and cannot freely conduct personal activities. These protective rules on working time are applicable as a right and include the use of technological devices.
Specifically, an employee cannot work beyond ten hours daily and 48 hours weekly. In addition, an employee has the right to daily rest of 11 hours between one working day and the next, a consecutive compulsory working week of 44 hours, and is not entitled to work on Sundays or public holidays apart from any exceptions provided by law.
Besides the ordinary rules related to working time, there is also the 2016 grand-ducal regulation known as the Teleworking Agreement, which gives guidelines and directives to employers so that they can reconcile employee private life and the needs of the company.
Despite its rich content, the Teleworking Agreement is insufficient and legal provisions regarding teleworking are necessary.
Internal regulations in companies ensuring a right to disconnect
Given the absence of legislation on the right to disconnect, critics have invited companies to create internal policies on the right to disconnect in order to comply with general health and safety principles. So far, few employers have set up internal regulations.
According to legal analysts, it would be in their best interests to do so ahead of any law. The risk of worker burnout and harassment are now omnipresent, and employers face criminal sanctions and civil liability under the Labour Code for breaches of health and safety obligations linked to working time provisions.
Also, the Labour Code gives employees the right to file requests for back pay for any overtime work and hours worked on Sundays and official holidays.
Currently, it is up to employers to reconcile company needs and employee rights, and to find their own solutions regarding the right to disconnect. However, it is almost certain that given the influence of French law on the Luxembourg legal system, Luxembourg lawmakers will soon make a stand on the right to disconnect.
Situation in Belgium
By Marie-Cécile Kinif
Given that workers are more and more likely to be connected outside of normal working hours, which blurs the line between work and private life, lawmakers in Belgium recently adopted Articles 15 to 17 of the 26 March 2018 "Act regarding the strengthening of economic growth and social cohesion".
These articles of law – in force since 9 April 2018 – establish that issues concerning disconnection and the use of digital communication should be discussed within the Prevention and Protection Committee (PPC), a representative body for employees that must be elected in companies with more than 50 staff members. The articles also states that in order for annual holidays and other leaves from work to be respected – thus ensuring employee rest periods and preserving a work-life balance – an employer must consult with the company's PPC at regular intervals, and at the request of PPC representatives. This consultation will focus on disconnecting from work and the use of digital means of communication.
The frequency of meetings between employers and the PPC is not imposed by the legislation. In preparatory works, however, it is recommended that this item be reinstated on the PPC agenda whenever there are significant changes in the business that relate to digital means of communication, or have an impact on work-life balance.
Ultimately, any agreement resulting from a consultation between employers and the PPC can be incorporated into the working rules of the company or into the collective bargaining agreement. Agreements can vary from rules of conduct to technical solutions, depending on each company’s specifications.
The provisions in the articles are intended to encourage employers to consult employees, and draft clear agreements on the use of digital work tools (e.g. laptops, smartphones, tablets, etc.) tailored for each company. This does not represent a "right to disconnect", but rather a right to discuss the matter within the PPC. It will, however, be up to each company to decide whether to adopt measures in the direction of the right to disconnect.
It should be noted that if a company does not have a PPC, the Union Delegation takes over these responsibilities. In the absence of both a PPC and a Union Delegation, the employees themselves will participate directly to a consultation with employers.
Before the adoption of this Act, no Belgian legislation specifically addressed the connection of employees to their mobile devices vis-à-vis professional communications and working hours. However, the Labour Act of 16 March 1971 clearly states that it is forbidden to make employees work or to let employees work beyond the time set out in the regulations.
Therefore, as a result of this legislation on working time, employees should not work beyond their employment schedules. This was mandated already before the adoption of the Act of 26 March and should be kept in mind by employers when discussing the issue of disconnection with the PPC. These rules, however, are not applicable to some categories of employees, such those entrusted with an executive position or a position of trust (e.g. an executive secretary), sales representatives and domestic workers.