France: Employees' right to disconnect from IT devices - new provisions in force from 1 January 2017

The French government has recently passed a wide set of employment law reforms, as part of the Labour Act (the "loi Travail", Loi n° 2016-1088 8 August 2016) also referred to as the "El Khomri law" (named after Employment Minister Myriam El Khomri).

One of the measures in this Act, picked up in particular by the media, is the so-called "right to disconnect" from IT devices.  Similar obligations have in fact already been included for the last 2 years in certain collective bargaining agreements eg, the SYNTEC collective bargaining agreement.

The new legal provisions provide for an obligation to discuss the use of IT devices during the annual negotiations with employee representatives (in the part relating to professional equality and work-life balance), and to review means of ensuring a reasonable use of such devices. In addition, companies employing at least 50 employees will have an obligation to put in place a charter which provides for specific training of executives and directors on the reasonable use of IT devices.

Key points to note are as follows:

New Article L.2242-8 of the Labour Code recognises the potential risks of an overload of work as a result of electronic devices and increased stress.  From 1 January 2017 the following provisions are in force:

• a general recognition of the obligation to respect private life, holidays and rest periods;
   
• employers with 50+ employees are required either to enter into a collective agreement or, in the absence of this, put in place a charter (after consultation with the works council) defining the right to disconnect, and training to promote a reasonable use of electronic devices;
   
• the collective agreement/charter should provide for: (i) the method by which employees can exercise their right to disconnect, and (ii) measures implemented by the Company to provide training for managers and to regulate the use of electronic devices, to ensure the respect for rest periods, annual leave and personal life.

However, there is no legal obligation to disconnect and no mandatory default settings for electronic devices (as had been recommended in the report on Digital Transformation prepared by the Mr Mettling, former HR Director of Orange).

Similarly, there are no express legal penalties for breaching these obligations.  However, employers may of course face risks of stress claims, claims in relation to breach of working time regulations etc. in the event that employees are working excessive hours.

Practical recommendations:

We recommend the following practical steps are taken where possible:

• putting in place an IT chart;
• training managers to respect work-life balance in terms of the expectations on employees;
• considering putting in place deferred sending times (so that emails arrive during working time/reasonable hours, where possible.

Written by Emma Rohsler, Partner, Paris