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France may make ‘switching off’ a legal right

It has been reported recently that French workers may be given the legal right not to read work emails outside their contractual working hours. The proposed law will protect employees who refuse to respond to work emails or phone calls at home or on holiday. French employment law is different to the UK’s in that it puts greater emphasis on worker protection, but the proposal raises interesting questions for UK employers.

In many jobs, particularly client-facing and managerial roles, employees are expected to check and respond to emails outside working hours. Why else, after all, would employees who spend most of their time in front of a computer also be provided by their employer with a smartphone and constant email access? It’s common for such employees to be expected to read their emails occasionally, or at least be contactable, while on holiday (and we all know people who seem to spend their holidays surgically attached to their phones).

In a still-fragile economy, few employees push back against such expectations – and many are prepared to accept them as a trade-off for being permitted to work flexible hours or take occasional time off for family reasons. But could an employer take disciplinary action against an employee who refused?

The key question would be whether refusing would amount to a failure to follow a reasonable and lawful instruction or to perform key requirements of a role. Many employment contracts state that the employee is expected to be flexible and work outside their contractual hours. Such wording would certainly be helpful to the employer in this hypothetical case, although few contracts are explicit about the time commitment expected.

Ideally the employer would be able to point to explicit instructions in the contract about the level of client service or availability required, although the more senior the employee, the more persuasively the employer could argue in a tribunal that an explicit instruction was unnecessary. Employers should always take care to ensure that expectations of availability are both reasonable and clearly communicated to employees at the outset.

However, even with very senior employees, or where there are explicit client-service standards, a dismissal on this basis could still potentially be unfair, if the employer’s expectations were unreasonable. An employment tribunal might have little sympathy for an employer trying to impose round-the-clock availability, particularly if an employee were to complain about the impact on his or her health or private life.

In a case last year, Federación de Servicios Privados v Tyco, the Court of Justice of the European Union (CJEU) suggested another avenue that employees could use to challenge expectations of round-the-clock availability. In that case, the court held that time spent travelling between home and customer premises counted as working time under the working time directive. The directive classifies working time as any period during which the worker is at work, at the employer’s disposal and carrying out his or her duties. Although case law on this point has so far emphasised the employee’s obligation to be physically present at work, that approach is surely increasingly outdated, and in the face of increasing medical evidence about the health risks of never switching off, it may not be long before the courts adopt a more expansive definition of ‘at work’ to include electronic availability.

If the CJEU did expand the definition of working time along these lines, workers would be able to rely on their right to daily and weekly rest periods under the directive to refuse to respond to emails because legally they can’t be on ‘working time’ and on a ‘rest period’ at the same time.

Businesses also have a duty to take reasonable steps to provide for their employees’ safety. Employer liability for stress-related personal injury depends on how predictable it was, and unless an employer knows an employee has a particular problem or vulnerability, it is usually entitled to assume that an employee can cope with the normal pressures of a role. However, expecting an employee to never ‘switch off’ might well be found by a court to go beyond ‘normal pressures’ and expose an employer to liability for compensating the employee for potentially career-long loss of earnings.

Added: 08-03-2016

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