How can employees' right to disconnect be implemented and respected ?

Introduced in 2016, there is no legal definition of the right to disconnect, either in French legislation or at European level. However, it can be defined as the right of employees not to be connected to a professional or non-professional digital tool during their rest and holiday periods. In addition, it is also considered to be the right of the employee not to be contacted in a professional capacity on personal tools.

The right to disconnect is a topical issue, aimed at improving the balance between employees' professional and personal lives, with a view to protecting their health, an objective now regularly reiterated by the French Constitutional Council.

In our society, where digital tools are omnipresent, it is important to introduce disconnection periods for a number of reasons. Firstly, to limit the number of disputes that could be brought by employees who are unhappy at not having been able to benefit from such measures (or who are simply trying to obtain damages on this basis); secondly, because the effectiveness of this right may become an argument to be put forward during recruitment interviews with a new generation of employees, who are more concerned about their quality of life at work and outside it.

It is therefore important for employers to know how to implement the right to disconnect and make it effective ?

What is at stake in the right to disconnect?

The right to disconnect applies during rest periods, holidays and suspensions of the employment contract.

The right to disconnect has a number of advantages for both employees and employers.

Thanks to the right to disconnect, working hours are respected; the attractiveness of the company is often greater in such a configuration and rest and holiday periods are effective, as is the protection of the employee's private and family life.

Secondly, by applying the right to disconnect, employee efficiency is enhanced, quality of life at work is optimised and, above all, the risks of absence, burn-out or burnout are de facto limited.

Employees who benefit from their right to disconnect are, in principle, less stressed and more effective at work.

The obligation to define a framework within the company

Although the right to disconnect is not provided for in the Labour Code, it is included in the mandatory negotiations on professional equality between men and women and the quality of life at work for employers who are subject to such provisions. In the absence of an agreement, a charter on the right to disconnect must be drawn up. In addition, any company that applies a fixed annual number of days must stipulate how the right to disconnect is to be exercised, regardless of the medium chosen (collective agreement or charter).

The right to disconnect applies equally to employees performing their work at the workplace and to teleworking employees.

In terms of litigation, the collective agreement or charter specifies the procedures for monitoring working time or regulating the workload and determines the time slots during which the employer may usually contact the employee.

Monitoring an employee's working hours

Control of working time by the employer is the corollary of the right to disconnect. Employers are generally subject to this requirement in order to ensure compliance with maximum working hours.

Please note :

Any system used to monitor working hours must comply with legal requirements and case law. It must therefore respect employees' freedoms (in the sense that it must not be too intrusive) and be subject to employee information and consultation with the social and economic committee (CSE), if one exists.

The employer may choose one of the following procedures:

• Record the hours worked by each employee;
• Have employees record their working hours themselves (self-declaration format);
• Display a pre-established collective timetable (under certain conditions);
• Define an individual timetable for each employee.

If employees fail to comply with working hours, and therefore, conversely, fail to comply with their 'right to disconnect', they may be called to order or even penalised. Indeed, while the right to disconnect must be implemented by the employer, it also implies a 'duty' on the part of the employee to disconnect, which may also be recalled in the agreement or charter provided for this purpose. (Besançon Court of Appeal, Social Division, 25 April 2023, RG nº 21/02205)

Case law on the right to disconnect

Given its recent introduction into the Labour Code, there is relatively little case law on the subject. It can also be seen that, more often than not, failure to respect the right to disconnect is used to support a more general claim for compensation under the employer's health and safety obligation, and to support a claim to challenge the fixed annual number of days.

For example, in a case decided by the Angers Court of Appeal, it was considered that the absence of a definition of the terms and conditions for exercising the right to disconnect could be used, along with other facts, to invalidate the individual agreement on a fixed number of days. (Angers Court of Appeal, 10 February 2022, no. 19/00630)

An employee who is able to demonstrate that he was not able to actually take his leave and that he was required to remain available for his employer during these periods will also have his fixed annual number of days called into question. (Paris Court of Appeal, 2 November 2021, no. 19/08065)

However, on these issues, the burden of proof also lies with the employee. For example, the Paris Court of Appeal ruled that the employee must prove a loss distinct from the failure to comply with the health and safety obligation in order to obtain damages solely for the failure to comply with the right to disconnect. (Paris Court of Appeal, 15 February 2023, no. 19/03551)

Similarly, judges may dismiss an employee's claim if he answered non-urgent work-related messages outside his working hours, even though he was regularly encouraged to comply with the relevant instructions and did not allege that he had been contacted by telephone outside his working hours. (Besançon Court of Appeal, 25 April 2023, no. 21/02205)

How can the right to disconnect be effectively implemented ?

The right to disconnect can be introduced through a number of different mechanisms: a collective company agreement relating to the "fixed annual number of days"; an agreement relating to quality of life and working conditions; an "ad hoc" agreement; or an employer's charter.

For greater effectiveness, and if the company wishes to be able to penalise any failure to respect the right to disconnect, this can be included in the internal regulations.

In the document chosen, the company will have to set out the various practices and systems implemented in the company to ensure respect for the right to disconnect, as well as the measures taken in the event of an employee failing to respect his right to disconnect and/or the rights of his colleagues.

If an employee has difficulty in respecting the right to disconnect, it is preferable not to let the situation get bogged down in order to limit the risk of litigation. It may therefore be necessary to schedule a meeting with the aim of analysing the causes of the situation and proposing solutions, or helping to put the tools into practice.

The system as a whole will make it possible to respond effectively to such problems and reduce the risk of litigation.

1. What is at stake in the right to disconnect?
2. The obligation to define a framework within the company
3. Monitoring an employee's working hours
4. Case law on the right to disconnect
5. How can the right to disconnect be effectively implemented ?