Smartphone coffee

France is well known for protecting its employees and ensuring a good work-life balance; from the 35 hour working week to allowing 6 weeks’ paid leave. It has now been reported that the French government is proposing a new law which, amongst other rights, gives employees the “right to disconnect” from their emails, smartphones and tablets outside working hours.

It is proposed that employees will be legally protected if they refuse to answer emails or phone calls outside working hours and employers will be required to ensure that their employees come under no pressure to read work related documents or emails outside their working hours.

Bruno Mettling, the director general of phone company Orange previously suggested the rule in his report regarding the importance of distinguishing between personal and professional life. He said “professionals who find the right balance between private and work life perform far better in their job than those who arrive shattered”.

Some businesses in France already require employees to disconnect from their email after a certain time in the evening and some disable their email systems at night.

In the UK, the position is more employer-friendly. The growth of mobile devices has led to many employers expecting employees to be available at all times. Further, and in the knowledge that the employee can be contacted outside office hours, there can be an expectation from clients or customers that the employee is essentially “on call”.

There is currently no “right to disconnect” in the UK, however employers should be aware of other potential problems of requiring employees to be available outside their working hours and how these issues can be addressed.

Most employment contracts provide for employees to work the hours required for the proper performance of their role. If this is the case (and subject to the points below regarding the 48 hour week), an employer can require an employee to check their email or take calls outside their normal working hours.

Workers have the statutory right not to work in excess of a 48 hour week on average over a period of 17 weeks under the Working Time Regulations, although many workers opt out of this right. If a worker refuses to opt out, they should not be placed at a detriment or dismissed due to that refusal.

Unless employers strictly monitor their systems and record the amount of work an employee is completing outside the office, it may be difficult to ensure that an employee does not exceed the limit. It is often advisable to request that workers sign an opt-out to ensure the limit is not inadvertently exceeded.

Even if an employee has signed an opt out, employers should remember that they owe a duty of care and should ensure that an employee is not undertaking excessive hours which could reasonably be expected to create a risk to the employee’s health and safety or that of others.

Employers should be alert to the possibility of stress at work claims and look out for signs that an employee is struggling to cope with their work. Absence is costly and it is therefore best to address early signs of stress. Employers may find that the possibility of flexible working or some form of staff mentoring assists in reducing stress. Employees should be encouraged to use their out of office where appropriate to reinforce that they are not available.

If employees are working excessive hours and do not receive overtime pay, steps should be taken to ensure that their hourly rate of pay (based on the hours actually worked) does not fall below the national minimum wage or the new national living wage when that comes into force.

Employers should be cautious of taking any disciplinary action for failure to respond to emails or telephone calls outside an employee’s contractual working hours, unless it is clearly set out in their contract or employee handbook that failure to do so will be subject to disciplinary action and the employee has been made aware of this. Employers should ensure that they act reasonably in all the circumstances.

By Kristie Willis, Solicitor in the Employment team at BTMK Solicitors Limited