What is the new French “right to disconnect”?

This “very French” new right for employes to disconnect from out-of-hours work emails, a fairly minor point of the Loi Travail, has been the focus of much attention in the UK and US, where questions are being raised (not without envy) as to the nature of this new legal UFO and how it should be applied.

Fantasies aside, this regulation (very vague, as described below) is a preliminary response to the new technological revolution on working methods, their impact on private life and employees’ health. In practice, there are more questions than answers for the moment but no doubt that the coming years will see the emergence of these attempts to regulate, not only in France.

What does the law say?

• Obligation to discuss this issue during compulsory annual negotiations and to open negotiations in view of a collective agreement for companies with union delegates.

• If there is no collective agreement, at the very least employers must set out official guidelines (following the Works Council’s opinion and if no employee delegates) which should include terms for exercising the disconnection right and the implementation of training and awareness sessions for employees and staff supervisors with regard to responsible use of electronic devices.

• No specific penalties are provided for in case of absence of official guidelines or collective agreement. However, no doubt judges will draw consequences in terms of work safety obligations (in case of burnouts, failure to respect rest time, etc).

• For companies without union representatives, official guidelines are also recommended and the subject should at the very least be raised during discussions / agreements on working time, whatever the employee headcount.

The law is not prescriptive as to the measures and means to be taken by employers, so everything remains to be established according to the constraints and culture of each company. (Terms? Minimum non-consultation period? Training for managers, etc).

Doing nothing is not an option for employers to protect themselves against legal risks in case of working-time litigation (for example increasing litigation relating to forfait-jours) or work health & safety.