France: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in France.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

The right to disconnect concept first appeared in case law in the 2000s. In 2004, for example, the French Supreme Court implicitly recognized a "right to disconnect" – without naming it – by ruling that "the fact that an employee cannot be reached on his/her personal mobile phone outside working hours cannot be considered as a fault".

The right to disconnect was finally introduced into the French Labour Code by Law n°2016-1088 of 8 August 2016.

2. Is the right governed by legislation, a code of practice or both?

The right to disconnect is governed by the French Labour Code, case law and collective bargaining agreements.

3. Do all employees have a right to disconnect?

Yes. In principle, all employees without any exception should enjoy the right to disconnect.

In practice, this right is relevant only for employees who are autonomous in the way they manage their working time, notably those who are subject to a day-per-year working time arrangement ("forfait jours"). Under this type of arrangement, the working time is not counted in hours but in days and hence the risk of confusion between professional and private life is higher.

4. Are all employers obliged to provide the right to disconnect?

Yes. All employers are obliged to provide the right to rest (and hence, to disconnect).

5. What are the obligations on the employer?

There is a general obligation to respect the right to disconnect implied in particular by the employer's duty of care towards its employees and by the employee's right to rest and to enjoy a personal and family life.  

In addition, there are two obligations on the employer provided by the French Labour Code:

• Employers with 50 or more employees have an obligation to negotiate a collective agreement on the terms and conditions for employees to exercise their right to disconnect and on the "implementation by the company of measures to regulate the use of digital tools" as part of the annual negotiations on professional equality between women and men and the quality of life at work. In the absence of an agreement, the employer must draw up a charter, after having consulted its Works Council.
• Collective agreements providing for day-per-year working time arrangements ("forfait jours") must specify the conditions under which employees may exercise their right to disconnect. In the absence of conventional provisions, the procedures for exercising this right to disconnect must be unilaterally defined by the employer and communicated to the employees concerned by any means.

Finally, the employer must take into account the right to disconnect when implementing flexible working time policies. 

6. What happens if an employer fails to comply with its obligations?

Regarding the general obligation, failure to respect the right to disconnect will entitle the concerned employee to claim for damages before the Labour Court and/or even bring a constructive dismissal claim. Generally, claims related to the violation of the right to disconnect are closely connected with other claims, such as back payment of overtime or moral prejudice.

Regarding the forfait jours more specifically, failure to mention how the company will ensure the employee can exercise their right to disconnect will invalidate this working time arrangement and will entitle the employee to claim for:

• the back payment of overtime;
• damages in consideration of the loss suffered;
• damages for absence of compensatory rest potentially; and
• the lump sum indemnity of six months’ salary for concealed work (more theoretical).

Since concealed work is a criminal offence, the Labour Authority could raise this as a breach of law. The related sanctions would be as follows: a fine of up to EUR 225,000 for the company and/or of up to EUR 45,000 for its legal representatives and/or up to three years’ imprisonment for the legal representative (this is theoretically possible but unlikely to happen in practice).

Failure to comply with the obligation to negotiate on professional equality between men and women, in particular on measures on working conditions, is punishable by one year's imprisonment and/or a fine of up to EUR 3,750 for the legal representative and up to EUR 18,750 for the legal entity.

7. Have there been any reported cases on the right to disconnect?

The right to disconnect is often invoked in disputes relating to working time. It is often used to challenge the validity of the forfait jours and to claim damages from the employer.

8. What are the benefits and challenges of the right to disconnect in practice?

The main benefits are the following:

• Ensuring compliance with French law regulation and thereby limiting exposure to litigation from employees/labor authorities.
• Enhancing employees' quality of life and thereby, potentially improving their productivity.

The main challenges are the following:

• Finding the right balance between protecting employees' health and safety and satisfying business' interests/goals.
• Ensuring the effectiveness of the disconnection right for employees working at a global level and those who communicate on a daily basis with others located in countries with a significant time difference.
• Finding the easiest way and most effective tools (e.g., IT automatic warnings) to, if not ensuring the effectiveness of the disconnection, at least mitigating the litigation exposure.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

It depends on the organization and on the type of employees in the company. But, in practice, when implemented and duly monitored, the right to disconnect has generally fostered a more positive workplace environment.  

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

There are no major changes on the horizon regarding the right to disconnect but it remains a key issue to consider for many organizations.