In this increasing digitalization era, many employers provide their employees with smartphones, digital tablets or professional laptops in order to facilitate interchanges and communications.

To some extent, such technologies may however become enslaving tools, exposing the employee to “oversolicitation” during non-working hours and/or days-off.

Protection of employees is therefore essential, in order to limit the drifts that may affect their health.

In this context, France decided to take a step forward in the “right to disconnect” subject matter.

The progress, although modest, appears in Article 55 of the labor Act of 8 August 2016 also known as the “El Khomri law”.

Following a second reform of the French Labor Code which came into force in autumn 2017, provisions regarding employees’ right to disconnect are now included in Article L.2242-17 7° of the French Labor Code.

According to these provisions, which only concern companies employing more than fifty employees, an annual negotiation meeting must be held between the employer and the employees’ representatives in order to discuss about the “modalities and conditions under which the employee may exercise his right to disconnect and the establishment of regulations regarding the use of professional  digital tools, in order to ensure the respect of rest periods as well as the employee’s personal and family life“.

In the absence of such agreement between the staff representatives and the employer, the latter should draw up a charter defining the “modalities for the exercise of the right to disconnect“.

This charter shall also laid down governing rules in order to ensure “a reasonable use of digital tools“.

The intention of the French legislator is to give to both employers and employees’ representatives some flexibility, taking into account the disparities that may affect employees using digital tools.

Despite its modest provisions, France remains ahead of the Grand Duchy of Luxembourg in the “right to disconnect” subject matter, where this topic is only covered indirectly.

The collective agreement on teleworking legal framework indirectly evokes the need to regulate the availability of the teleworker using digital technologies.

Furthermore, one should also consider the general rules on the limitation of working hours set out in Articles L.211-1 and following of the Labor Code.

The employee of a company of at least fifteen workers[1] may also discuss with the personnel representative in charge of safety and health[2] and mention his hyper-digital solicitation.

In smaller companies, the employee overexposed to professional solicitations could in the first place remind his employer about his obligation “to ensure the safety and health of employees in all aspects related to work[3] in order to try to find a solution.

So far, no Luxembourgish jurisdiction has been seized on any digital overexposure situation.

Given the stake and the serious consequences that over-solicitation at work may cause to the employees, a provision regarding that matter with concrete elements to prevent abuses would be relevant.

In this context, a Luxembourg trade union recently sent a letter to the Minister of Labor in order to implement a concrete “right to disconnect” in the Labor Code.

Let’s see how the whole situation will evolve and if the Minister of Labor, Mister Nicolas SCHMIT, will be receptive to this subject matter.

 


[1] Article L. 411-1 (1) of the Labor Code.

[2] Article L. 411-14 of the Labor Code.

[3] Article L. 312-1 of the Labor Code.