Are you giving your employees the opportunity to disconnect?

A legislative change in France requires companies with more than 50 employees to guarantee those employees the ‘right to disconnect’ from their smart phones and other technology that gives them access to emails outside of work hours.

In the last couple of decades, France has been a world leader in employee rights, implementing legislation and regulation aimed at protecting employees from unjustified termination, protecting the right to five weeks of annual leave, and ensuring employees benefit from a 35-hour working week.

However, with the emergence of technology, the demarcation lines between the personal and professional environments are becoming blurred. The ‘right to disconnect’ is France’s answer to a style of living where employee’s are increasingly expected (whether apparent or implied) to be constantly connected. The availability of global market access for trading means that businesses on a global scale can effectively trade and be available 24 hours per day.

The new legislation will aim to combat this “always on” culture by requiring companies to negotiate with their employees about their rights to disconnect and reduce the intrusion brought about by digital devices that give ever connected access.

Of course, whether such a legislative change would occur in New Zealand is uncertain. For instance, the Small Business in New Zealand factsheet released by the Ministry of Business, Innovation and Employment in July 2015 states that 97% of enterprises have fewer than 20 employees. Whether such a change could be implemented on a nationwide scale with the ease that was seen in France is debatable.

However, here in New Zealand we may already have a mechanism in place to control the work-life balance.

The Health and Safety at Work Act 2015 (HSWA) introduced obligations on employers to provide for the health and safety of workers. This includes providing for the welfare of workers while working and the provision and maintenance of safe systems of work. This obligation requires employers to minimise or eliminate risks as far as reasonable practicable.

Arguably this requires an employer to turn their mind to what work their employees are doing outside of work hours to make sure that they are protected from the risks of being ‘always connected’. This may even extend to employers needing to implement policies and guidelines to control the level or length of access that employees have outside of work hours.

While it is still unclear just how far this obligation goes, expectations to be available during personal time is already a common complaint being raised by employees in workplace stress claims.

Of course, the flip side to this is that more and more employees are now advocating for flexible work hours and the availability to work hours that suit their particular and individual situations. How this can be managed effectively remains to be seen but will undoubtedly require a case by case factual analysis of how best to provide for all employees.

Unfortunately, the French legislation is much like a barking dog, without teeth. It comes with little consequence if companies do not comply as no fines or other punishment have been built into the legislation. This effectively makes the legislation a moral obligation for companies and at the very least gives the employees grounds for opening the discussion with their employer.

No matter which route New Zealand uses to tackle this increasingly complicated issue, the health and wellbeing of employees will be paramount. As technology continues to trend ahead of legislative change, the fear is that the law will not be able to keep up in protecting employee rights into the future.

Please contact our specialist Employment Team if you would like any advice concerning health and safety of employees, or any other employment issues, we would be happy to assist.

 

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