Our thoughts on the world of employment law - and beyond.

Clocking off on the dot

A debate about our national levels of overworking and comparison with neighbouring countries' allegedly healthier work-life balances has rumbled through the press over the last week, after the announcement in Les Echos of a new French labour agreement precluding business contact out of hours.

On a first reading, English-language news reports seemed to imply that all digital technology and consultancy sector employers across France were suddenly banned from contacting their staff outside of their contractual hours. Likewise, those workers seemed to be stripped of decision-making powers; being instructed to turn off work devices and avoid even reading work emails when supposed to be resting.

Encouraged by these excitable headlines, readers might have wondered whether such movements within the EU marked the start of things to come, as the natural reaction to the technological and flexible working shifts inherent to modern lifestyles. Did this ban herald the start of a revolution in reclaiming private time; of ditching the Blackberry?

The truth of the matter: French forfait jours

The labour agreement in question was signed at the start of April after six months of consultation between key employers' federations and workers' unions. Far from being a precursor to new legislation, in fact the intention behind it is to shield certain digital technology and consultancy sector workers from being forced to remain contactable throughout their rest periods. The agreement expands upon the law that established the famed French 35-hour working week as from February 2000.

Of the one million workers the signatories represent in total, the agreement only applies to the roughly 250,000 of their 'forfait jour' independent workers.  Difficult to translate directly, the term 'forfait jour' typically covers executives who have no fixed contractual hours, but who are employed to work a number of days per year rather than hours per day. The standard 35-hour working week limit does not apply to them, therefore, and they were frequently putting in extremely long working days.

The new agreement's 'obligation to disconnect communication tools' is fundamentally an acknowledgment that this class of autonomous workers has a right to a fair amount of rest time per day. It expressly guarantees them a minimum daily rest period of 11 hours (as per the EU Working Time Directive), meaning that they could work lawfully for up to 13 hours per day before being 'obliged to disconnect'. It by no means requires them to down (communication) tools at 6pm on the dot, or for employers to stop contact at that time, as had been proclaimed.

Standard working time in England and Wales

As we begin the long bank holiday weekend, I thought a quick recap of working time provisions in England and Wales might itself be timely, given this recent misperception.

In outline, under the Working Time Regulations 1998 ('WTR'), employers are obliged to:

  • Take all reasonable steps in protecting workers' health and safety to ensure that each worker's average working time (including overtime) does not exceed 48 hours per week;
  • Take all reasonable steps, in protecting health and safety, to ensure that night workers' normal hours of work do not exceed eight hours per day on average;
  • Give workers 'adequate' rest breaks where the pattern of work is such as to put their health and safety at risk, in particular where work is monotonous;
  • Keep and maintain records showing whether the limits on average working time, night work and provision of health and safety assessments are being complied with in the case of each worker;
  • Allow workers the following rest periods (unless they are exempt, in which case compensatory rest will usually have to be given):

            - 11 hours' uninterrupted rest per day;

            - 24 hours' uninterrupted rest per week (or 48 hours' per fortnight); and                 

            - A rest break of 20 minutes when working more than six hours per day; and

  • Allow workers 5.6 weeks' paid holiday each year (equivalent to 28 days for a full-time worker).

Depending on the type of work and the relevant contractual arrangements involved, the impact of the WTR might lawfully be varied. Note, in particular:

  • Workers doing particular types of work (so called 'special case' workers such as rail and offshore workers, and junior doctors) are exempt from certain rights;
  • Young workers (those under 18 but over compulsory school age) are given additional protection;
  • Special rules apply to certain groups of worker, such as the armed services, police and those engaged in civil protection; and
  • Many of the rights granted by the WTR can be waived or varied by an individual, workforce, or collective agreement. For example, individual workers have the right to 'opt out' of the 48-hour limit on average working time, meaning that they can properly be required to work longer days.

As referenced above, rest periods and holiday time are regulated under the EU Working Time Directive to ensure fairness and standardisation across Member States. This is, however, the default position, and can be flexed by contract or at the individual's own volition (except under the doctrine of agreements such as the new French agreement considered above!).

Though mooted by the enthusiastic media of the English-speaking world this week, enforcing an email and call ban across professions would be impractical and almost impossible. In reality of course, workers will always use the commute to work and quiet time at home to catch up on emails and finalise pieces of work at their own speed and time. Indeed, this capacity is an essential part of the drive for increased flexibility and autonomy in modern working styles in the UK.

That said, I hope you can promptly switch off this evening and enjoy your share of chocolate eggs away from business emails. Have a very happy Easter!

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