France. Its wines, its cosmetics, its fashion, its planes… and its right to disconnect. “Want the legal right to ignore your boss outside of working hours? Learn from the French,” was the recent headline in a (slightly flattering) editorial on the English news site The Guardian. Since its adoption in 2016 by Parliament, this measure of the El Khomri law has been exported. In various forms that are more or less restrictive for companies. Thus Belgium, Italy and Spain have enshrined this right in law. The right to disconnect travels far. Since August 26, 2024, Australian employees, can now “refuse to monitor, read or respond” to requests from their employers outside of their working hours, unless this delay is “reasonable”. And in France? Companies with more than 50 employees are required to address this subject during the Mandatory Annual Negotiations (NAO) or, failing that, to draw up a charter after the opinion of the social and economic committee. Overall, companies seem to be playing the game. In its 2022 collective bargaining bulletin, the Ministry of Labor notes that if “the branches have taken up this theme relatively little […] the number of company agreements has, however, been stable and rather dynamic for four years, with nearly 400 agreements concluded in 2022 (the share of agreements addressing the right to disconnect and digital tools reached 29% of agreements on working conditions).
France, paradise of the right to disconnect? The image is beautiful. The reality a little less so. More than seven years after the entry into force of this system, disconnection is in reality struggling to find its place in practices. According to a Deskeo study from 202447% of employees check their work emails while on vacation. 27% check them regularly. More than three out of ten employees actually answer phone calls. A survey published by The Infobesity Observatory in 2023 we learn that managers reconnect on average 117 evenings per year (at least one email after 8 p.m.) while 30% of employees reconnect between 50 and more than 150 evenings per year. In Belgium, where the right to disconnect has been enshrined in law since 2022, a study published this year by Protime, the Belgian market leader in time recording and personnel planning, indicates that 54% of employees are still contacted more or less regularly by their employer outside their working hours.
Since the El Khomri law was passed, the health crisis and the boom in teleworking have been there. With on the one hand a fairly strong demand for flexibility among employees. And on the other hand a work organization that will be more continuous, with times that start earlier and end later. An ambivalence that does not make everyone happy. According to ADP’s “People at Work 2023” surveymore than two-thirds of French teleworkers (68% compared to 56% of those who are on site) report working unpaid overtime. Could there have also been an initial misunderstanding? “France is a pioneer, but on a commitment of means. There is never an obligation of results”, explains Arthur Vinson, co-president of the Observatory of Infobesity.
For Bruno Mettling, author of the report that inspired the implementation of the right to disconnect in France, the law passed in 2016 had the merit of reversing legitimacy: “No employee can be criticized for not having been connected outside of their working hours. That was the real innovation”. In the corridors of the industrial tribunals, too, the results are rather positive: “It is not a purely symbolic right”, assures L’Express a labor lawyer associated with a large Parisian firm: “It is regularly raised before the industrial tribunal advisors, particularly in the context of requests for the reclassification of daily packages. I have never seen in a file an employee who was criticized for not having responded to an email received in the evening or at the weekend”. In the cases she has to deal with, the lawyer notes in passing “a clear drop in the number of emails sent at night”.
“Companies need to measure all of this scientifically”
Since not all issues related to the right to disconnect end up in court, what can be done to counter and regulate the upheavals linked to the rise of teleworking? Bruno Mettling suggests starting phase two. Namely, moving from a defensive right to something more intrusive: “ensuring that the employee’s working conditions remain compatible with reasonable connection times”. “In addition to the legal framework, research has shown that the terms must be defined at the team level. The famous prescriptive charter that tells you that connection time is 9 a.m. to 6 p.m. and which is applied to 20,000 people, has never worked”, dismisses Arthur Vinson. The co-president of Mailoop, an SME analyzing digital practices, recommends moving away from impressions to move towards concrete things, data, the only way to “de-stir a subject that is almost religious, where we find divisive positions”.
“Companies and IT teams need to measure all of this scientifically. We can’t talk about disconnection until we know the quantity of emails sent outside of working hours and without a point of comparison,” continues the entrepreneur. The way forward, according to him: “We must first measure in order to start from a common observation and share it at all levels.” However, we are reaching the limit of employee surveillance, Arthur Vinson tempers: “There is a huge issue regarding the acceptability of the measure. In terms of the General Data Protection Regulation (GDPR), we cannot today deploy the measurement of email flows according to working hours and generate statistics without asking anyone.”
For Bruno Mettling, in addition to health issues, the new fight for the right to disconnect concerns economic issues: “We need to train people in the proper use of these emails so that they are not intrusive. They waste an infinite amount of time and reduce productivity”. Productivity and a boost for the economy, this is one of the main arguments put forward by the British government to justify the introduction of a right to disconnect: “Good employers understand that to stay motivated and productive, workers need to be able to disconnect and that a culture of presenteeism can harm productivity”. Inspired by the Irish model, Keir Starmer’s Labour government is considering adopting a code of good conduct rather than a law. A format supported by a recent editorial in Financial Times : “Too strict legislation or a one-size-fits-all approach would be a mistake. In a globalised environment, many businesses – financial firms, technology companies or anyone who needs to respond quickly to customer needs – may struggle to operate effectively if they cannot reach their key employees in an emergency.” The British daily points out that “many people in management or highly paid positions are willing to work and be reachable for longer hours than normal, which is justified by the pay, rewards and responsibilities they receive.”
Arthur Vinson, however, makes the example given by top management a prerequisite for the dissemination of good practices in the rest of the company: “The right to disconnect has always been taken as a subject that we deploy to employees. However, the first population to whom it must be deployed is the managers. This has been measured: if a hierarchical manager sends an email after 8 p.m. on a weekday or weekend, in 60% of cases the response from the lower-level employee is at the same level of disconnection”. In other words, if you are a boss and you send an email outside of normal working hours, whether you like it or not, people will respond to you. The polytechnician advocates for discussion times at regular intervals between the manager and his team: “In the same group, there are very free and very independent people who will organize themselves as they wish and deal with their emails in the evening, but we neglect that alongside them, there are often people stressed about receiving an email at 6:34 p.m. However, because they have the good student syndrome, they cannot help but deal with it as soon as they receive it. And the expert concludes: “Even on the eve of a burnout, an employee will tell you that everything is fine in terms of disconnection.”
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