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Right to be Disconnected – The Wave to Catch On

June 19, 2017 • Social Impact, SUSTAINABILITY & ETHICS

By Jasna Čošabić

This paper analyses the possible influence of the French labour law reform – the “right to be disconnected” –  on other countries and the benefits of preserving work/life balance which might be jeopardised by the rapid development of IT technologies and digital ways of communication.


The French law provision on the right to be disconnected entered into force on 1 January 2017, and the storm of comments, analyses, opinions, cooled down a bit, but, now questions remain. What effects will such a law produce? What will happen next and where? The French law made an initial capsule of change, but shall it influence the wave of similar provisions in other countries?

Let us first reflect on why the “Law to disconnect” was adopted in the first place? France, being the country where roots of modern human rights protection were made such as in the Declaration of the Rights of Man and of the Citizen, opted for a provision enabling the protection of the work/life balance in the modern world of digital technologies, which are developing ahead of time. The use of IT devices, accompanied by the flare of social networks and other communication tools, were widely accepted in society as a new way of communication, allowing for prompt and instant information. However, that wide acceptance, at one point in time, seemed to have given a negative “boomerang effect” on the life of employees, allowing for too much interrelation of their private and work life. Such interrelation, erasing the clear borders between private life and work, gave the French Minister of Labour a hint as to pursuing legal regulation that would provide for the “right to disconnect”.

Accordingly the legal provisions at issue were adopted back in August 2016, known as El Khomri law, after the minister Myriam El Khomri who induced the labour reform at issue. The provisions of the law are not dramatic nor do they carry the interference of the state in functioning of French enterprises.  It provided that companies with more then 50 employees should adopt procedures in order to enable the employee to exercise a right to be disconnected with a view to ensure the respect for periods of rest and leave as well as for private and family life. The modality of providing for such rights is upon the companies.

We may wonder, why the provision relates to companies of more then 50 employees. One possible answer would be that those are well established companies, the business of which will not be impaired by the limitation on the connectivity, and giving chance to start-ups which are financially in disadvantaged position.

So the law leaves to those “plus 50” companies open hands in determining the modality of the exercise of the right to be disconnected, without interfering with their work.

However, the “disconnection” after office hours is not a total novelty in the contemporary business world.

In 2012 Volkswagen agreed to stop routing emails 30 minutes after the end of working hours and to start again 30 minutes before.1 The company wanted to give their workers some uninterrupted rest time.

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Daimler in Germany introduced the praxis for their employees while they are on holidays that e-mails sent to them would be erased, with the corresponding auto-reply to the sender that the mail was being deleted, and the instruction to send it again when the person is again in the office.2

Some big IT companies such as Google and IBM also developed strategy on work/life balance in order to pull out the most creativity from their employees. Google in Australia, for example, encouraged their employees not to check emails outside of working hours.3

IBM in Austria made it possible for their employees to practice yoga or massage in order to provide them for “inner balance” to be “relaxed at work”.2

[su_pullquote]The concept of a good work/life balance brings overall health benefits, prevents workers from being overexerted, and enables getting the best out of them in return. In the modern business world it is predominantly understood that a person with a preserved private life will be most productive in their professional life.[/su_pullquote]

In a situation when in some developed countries the unemployment rate is at minimum or close to it, it may be hard to attract the qualified workers. This is especially true for workers in the IT sector, which is developing rapidly. Thus it is often the case that companies offer snacks and drinks, flexible working hours, the ability to be disconnected at private time, organised shuttle to work, relaxation in office through playing table tennis, billiard or gym workout, resting and mediating during work hours,  team building , not only outside of office, but at some relaxing out of city venue. The aim of these benefits is the wish of good standing companies to have an employee who is relaxed, without stress, and energised, understanding that thus he/she would most benefit the company.

The concept of a good work/life balance brings overall health benefits, prevents workers from being overexerted, and enables getting the best out of them in return. In the modern business world it is predominantly understood that a person with a preserved private life will be most productive in their professional life.

Thus, the well established principles of labour law such as rest between two working days, week rest and annual leave must be preserved and not jeopardised by the overwhelming digital era enabling people to always be reachable.

Can you imagine giving your employer your private land line number so you could answer calls when you come home? No, of course not. Well, the availability of employees started to increase with the arrival of cell phones, and progressed further with the Internet development supported by the ever evolving spurt of devices interacting with each other, through the growth of Internet of Things devices.

While it is common for certain professions to be “on call” after work, such as medical workers, police officers, prosecutors, etc., where preservation of lives and public safety is at stake, such availability after work is not necessary nor in public interest for many other branches especially with regards to private employers, except for increasing their profit. Whether some client of a trade or IT company will get an answer within one hour, no matter the time of day, may not be of utmost importance, if a society gets accustomed to the meaning of “time off”, resulting in waiting for the new working day to start, to be normal.

Thus, in the hustle of digital development, one must not forget the basic relationship of work and life. And why this relationship is important.

Do workers live to work, or work to live? Is the purpose of work to enable a decent life for a worker and his family, in which they would be able to enjoy the benefits of work after working hours, or subjecting the private life to work, giving the latter the priority? Although the question appears to be primarily philosophic, as to what is older – the substance is that every person needs private time off work, in order to allow the full growth of his or her personality.  This issue is far beyond the “quiz” question: “Do you consider your career your life, or a means to earn money?”

[su_pullquote]Do workers live to work, or work to live? Is the purpose of work to enable a decent life for a worker and his family, in which they would be able to enjoy the benefits of work after working hours, or subjecting the private life to work, giving the latter the priority?[/su_pullquote]

If a person is obliged to respond to e-mails during his rest time, then he may not rest effectively. While he is out of office, he is not really out of work. Can you imagine an IT expert sitting at the beach side, during his annual leave time, with his laptop on, not really being aware of the sea waves splashing the shore just there beside him? Can that be counted as a holiday? The purpose of annual leave is to have a worker being refreshed once having got back to the office, ready for another tour of work, all until the next annual leave. Constant availability on the Internet and the obligation to respond to e-mails, texts, various messengers, inevitably lead to the sooner “burnout” of such an expert, and the decrease of his overall productivity time-frame. At the end, the companies would suffer loss being obliged to more quickly change/replace their employees, in order to have a fresh working force. Such a “burned out” worker, being squeezed out from the company may be put at the social burden of the state, which again leads to more expenses. If we add to that, health issues which may arise from not having enough rest, there may be further expenses for the state health system. Understanding of such an unfavourable outcome could lead the states plea for respecting the correct work/life balance and for introducing the “right to be disconnected” into their legal systems.

“Overtime” was and has been the way to deal with excess work. However, it has statutory limitations which usually well define the “overtime” and “compensatory time off”. Nonetheless, if companies are left loose-handed in requesting their workers to stay online when out of work, they could evade limitations set by overtime and alike institutes, by sending employees home just after the work hours finish but obliging them to stay online, and thus evading not only overpayment but compensatory time off, as well. Not limiting overtime, or denying compensatory time off, leads again to the “burnout” of workers.

In that regard can we speak of the “the right to be disconnected” as an evolving human right? Whether it would make a separate human right or not, it certainly is a part of the right to respect for one’s private life which is protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms.

There are two possible scenarios in the incorporating of the “right to be disconnected” in state legal systems. Whether the governments shall opt for adopting a law at short notice and imposing rules for companies, or, on the other hand, for letting the companies themselves pave their own way for such an approach, wishing to make an attractive employer fighting for qualified workers in the fast growing competitive labour market, and then frame the existing practice in law, is for them to decide. Either way, the industry should take into consideration that their most important assets are people. No matter how technologies may be developed, humans are the ones that carry technology. A quality worker is a worker that is inspired, creative, and not a burned-out, exhausted, over-exerted employee whose private life is impaired with constant obligation to be online. Those are the values of any democratic society that must not be undermined with the growth of the digital era we are living in.

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About the Author

Jasna Čošabić PhD, is a Professor of IT Law and EU Law at Banja Luka College, Bosnia and Herzegovina. Besides her scientific work, she writes op-eds and legal analyses in the field of IT technologies and human rights. Her texts are being published in Austria, Slovenia, Belgium, Greece, USA and Canada.

References

1. http://www.bbc.com/news/technology-16314901
2. https://www.theatlantic.com/business/archive/2014/08/daimlers-german-employees-can-set-emails-to-auto-delete-during-vacation/376068/
3. http://www.adelaidenow.com.au/news/national/aussie-employees-have-right-to-disconnect-from-work-after-hours/news-story/bce9ba83fbbd0dfbd74050380858b9ba
4. http://www-05.ibm.com/employment/at/diversity/balance.htlm, 6/2007.

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