Com­pa­nies may need a pol­icy on work emails and calls af­ter hours

The right to dis­con­nect from tech­nol­ogy must be ad­dressed, says Kate Wy­att

The Scotsman - - Friends Of The Scotsman / Law And Legal Affairs -

Re­cent le­gal de­vel­op­ments have raised the stakes on out-of-hours com­mu­ni­ca­tions, and there are grow­ing calls to give work­ers the right to dis­con­nect.

In ad­di­tion, a wide range of multi­na­tion­als – in­clud­ing Volk­swa­gen and Axa – have in­tro­duced com­pany poli­cies against work­ers’ ‘hy­per­con­nect­ed­ness’. It’s all part of a drive to pro­tect work­ers against burnout and 24/7 work pres­sures.

There are no plans to in­tro­duce a le­gal right to dis­con­nect in the UK, but staff well­be­ing and en­gage­ment are is­sues for ev­ery busi­ness, re­gard­less of lo­ca­tion. De­vel­op­ments in Europe and the US on the right to dis­con­nect could of­fer point­ers on pos­si­ble prob­lems, or so­lu­tions, in your own busi­ness.

In France, or­gan­i­sa­tions with more than 50 work­ers must now ne­go­ti­ate on em­ploy­ees’ rights to ig­nore their smart­phones and other de­vices out­side work­ing hours. The law, called the El Khomri law, af­ter the min­is­ter who in­tro­duced it, of­fers com­pa­nies

a sub­stan­tial de­gree of flex­i­bil­ity in how they im­ple­ment this right. How­ever, the right to dis­con­nect does have teeth, as a re­cent case shows.

In July 2018 the French supreme court, the Cour de Cas­sa­tion, ruled that a French branch of the British firm Ren­tokil Ini­tial had failed to re­spect a se­nior em­ployee’s right to dis­con­nect. It had re­quired him to be con­tin­u­ally avail­able by tele­phone to deal with prob­lems raised by ju­nior staff or cus­tomers – in­clud­ing when he was not at work. This, the court found, con­tra­vened French law, and he was awarded €60,000.

Per­haps even more un­set­tling for em­ploy­ers is a case in Ire­land, where the em­ployee had vol­un­tar­ily re­mained con­nected.

The em­ployee, a busi­ness devel­op­ment ex­ec­u­tive, said she’d been obliged to re­main on­line in order to

com­plete her du­ties. This took her well over the statu­tory max­i­mum 48 work­ing hours a week.

Un­der Ir­ish leg­is­la­tion, em­ploy­ers must not ‘per­mit’ em­ploy­ees to work in ex­cess of the weekly limit. Here, the em­ployer had done just that, by be­ing aware that the em­ployee was work­ing sub­stan­tial hours over the limit and fail­ing to do any­thing to stop it. The em­ployee was awarded €7,500. So what are the lessons for busi­ness? While the French and Ir­ish cases both in­volve na­tional law, there are lessons to be learned, not least that good house­keep­ing on work­ing time is im­por­tant, such as keep­ing records of work­ing time and tak­ing ap­pro­pri­ate ac­tion if staff are work­ing longer than their con­tracted hours.

A se­cond les­son is that the tide may be un­stop­pable. The EU is propos­ing to strengthen the right to dis­con­nect,

and Italy has in­tro­duced a right for some work­ers to be ‘dis­con­nected from tech­no­log­i­cal equip­ment’.

And across the At­lantic, New York City Coun­cil is con­sid­er­ing a law that would ban com­pa­nies from re­quir­ing work­ers to re­spond to out-ofhours com­mu­ni­ca­tions. Em­ploy­ers would still be able to send them, but wouldn’t be able to dis­ci­pline work­ers for ig­nor­ing them.

Does all this mean that UK em­ploy­ers should do more to per­mit – even oblige – staff to ‘dis­con­nect’ out­side work­ing hours? per­haps not. be­cause it’s worth bear­ing in mind that the right (or obli­ga­tion) to dis­con­nect is not every­one’ s cup of tea. for in­stance, many peo­ple like the op­tion to leave work promptly, and then catch up with emails later in the evening, or on their morn­ing com­mute. In an in­ter­na­tional or­gan­i­sa­tion, out-of-hours avail­abil­ity may be vi­tal to al­low calls across time zones.

As a re­sult, sim­ply lim­it­ing out-ofhours mes­sag­ing or ac­cess to emails may alien­ate as many staff as it pleases. But we do rec­om­mend start­ing a con­ver­sa­tion busi­ness-wide, gaug­ing staff con­cerns and pref­er­ences, and tri­alling pos­si­ble so­lu­tions.

When do­ing this, there are two im­por­tant thing store mem­ber. first, the con­ver­sa­tion should in­clude peo­ple at dif­fer­ent lev­els of se­nior­ity, with var­ied work­ing pat­terns. Se­cond, se­nior staff have to set the cul­ture. If you do adopt a com­pany pol­icy, you should fol­low it your­self. Kate Wy­att is a part­ner in Lind­says’ Em­ploy­ment team

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