French law implemented in 2017 the “right to disconnect” from digital tools, requiring employers to limit employees’ use of digital tools outside of office hours.
The purpose of this legislation is to protect the employees’ work-life balance and their right to rest periods.
The law did not provide details of how employers should implement the right to disconnect as the employer is supposed to negotiate such modalities with its unions. In the absence of agreement, the employer is required to prepare a charter, after having consulted the works council or the staff representatives.
The law did not provide any specific sanction in the event of breach of such obligation.
In a recent case of 12 July 2018, the Supreme Court decided that the absence of disconnection amounted to being on call all the time and that the employee had the right to be compensated pursuant to the on call duty (astreintes) regulations.
Such on call duty regulations were modified in 2016 and no longer include the concept of having to stay at home in order to be at the disposal of his employer. The concept of being on call is defined as the period of time during which the employee is not at his place of work but is available to be in a position to intervene if need be. Such regulations oblige the employer to compensate such period financially or by allocating additional days of rest to the employee. The amount of such compensation is not specifically provided by law but must be fixed by the sector wide collective agreement or a company agreement.
The case specifically related specifically to a company which had implemented a policy under which the employee had the obligation to leave his phone permanently on, in order to be able to respond to solicitations from his subordinates or from clients. However, the employer did not consider this to be covered by the on call duty regulations.
For the Supreme Court, the employee had to be permanently available with his mobile to be able to answer any calls so that he could intervene in case of need. Therefore, the court decided the fact the employee had to remain “connected” clearly fell within the scope of the on call duty regulations and that the employee should have been compensated for it.
The company was ordered to pay 60,000 euros to the employee as back payment of the on call duty compensation.
Therefore, a breach of the right to disconnect may allow the employee to claim the specific compensation provided by the sector-wide collective bargaining agreement or company agreement.
This position of the Supreme Court could lead to numerous litigations with employees as it absolves the employees from having to demonstrate a specific loss to justify a claim for damages and enables them to claim directly the payment provided under the collective bargaining agreement.