Disconnected – ensuring working time compliance

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This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Many employers provide their employees with mobile devices such as smart phones or tablets. But what are those devices for? In today's 24/7 culture and increasingly global workplaces, there is a growing tension between the pressure on workers to check and deal with emails and to generally be available outside their normal working hours on the one hand, and the right to uninterrupted free time in accordance with working time laws applicable across the European Union on the other. Following a recent development in France, we take a look at the position in France, the UK, Germany and Spain.

France is well known for its 35 hour limit on weekly working time. However, various national collective bargaining agreements (CBAs) allow employers to agree with certain categories of workers - broadly, those who are autonomous or executives - that they will work a fixed number of days per year (usually 218 days), with the number of hours worked being disregarded. In practice, this arrangement has meant that an executive could work up to 78 hours per week.

In April 2013, the French Supreme Court decided that the provisions of the SYNTEC CBA (applicable to many technology companies), which allowed working time limits to be defined by a prescribed number of days, did not sufficiently protect workers' health and safety because of the risk that they could work excessively long hours each working day.

In light of the Supreme Court's decision, a revised SYNTEC CBA was concluded and applies from 1 August 2014. It incorporates various measures to safeguard the health and safety of workers whose working time is measured in days rather than hours, and includes a requirement that these workers disconnect from remote working devices during prescribed minimum rest periods. Employers are required to notify workers of the start and finish times of daily and weekly rest periods, during which the disconnection obligations will apply, and to implement various monitoring arrangements to ensure compliance with the prescribed minimum requirements. Significantly, an employer must ensure that its workers comply with the disconnection obligation, although the CBA does not specify how an employer should do this in practice - potentially an employer could decide to switch off its central server during the mandatory disconnection period so that a worker is not able to receive any work related emails.

Companies subject to the SYNTEC CBA have until 3 January 2015 to implement the new measures and relevant revisions to workers' individual contracts. For employers that do not have a company agreement or union/elected workers' representatives, the revised CBA will apply directly. Employers with workers' representatives or unions may prefer to conclude a company agreement.

In the UK, there are no such disconnection obligations. The Working Time Regulations 1998 (WTR), which implement the European Working Time Directive, broadly provide that a worker must be allowed certain prescribed minimum periods of daily and weekly uninterrupted rest. Employers are obliged to ensure that workers can take their rest periods and whilst in some limited circumstances, the worker can be required to work through these periods, they must be provided with equivalent compensatory rest. That said, employers are not required to force workers to take rest periods, meaning a worker can choose to work through a rest period (for example by checking emails in an evening), and will not be entitled to any compensatory rest or have any ground for complaint. The Chartered Society of Physiotherapy has estimated that one in four workers are not exercising their rights to take rest breaks during the day. Although there is of course a fine line between a worker freely choosing to forgo a rest period, or feeling compelled to do so in a workplace culture in certain industries where it is expected they should be available as required by the employer, claims on this basis are relatively rare. A 2009 study estimated that UK workers who had a work mobile phone were working an extra 15 hours a week - and in today's Blackberry and BYOD culture, this figure may now be even higher.

In addition to these minimum daily and weekly rest periods, in broad terms, the WTR also provide for a maximum 48 hour working week, calculated over a 17 week reference period and allowing for intermittent periods of more intensive work activity.

Given full-time UK employees work an average of 40.8 hours a week, and autonomous decision makers are excluded from the limit in any event, it does not have a significant impact in practice. That is particularly the case because in the UK a worker may "opt out" of the maximum working week (in which case the employer is not even required to keep records of working time for that particular worker) - and, in practice, most employers in the UK obtain opt out agreements upon commencement of employment. Although workers have the right to "opt back in" to the maximum working week on not more than three months' notice, this is rarely exercised. However, even if a worker has agreed to opt out of the 48 hour maximum working week, the employer is still under a duty to protect the worker's health and safety and provide a safe working environment and the requirements regarding daily and weekly rest periods are still applicable.

In summary, notwithstanding the limitations of the WTR, UK employers must ensure that hours worked by their workers, both in and outside the office, do not create a reasonably foreseeable risk to their health and safety, or the health and safety of others. How this is dealt with in practice is generally considered to be a matter for individual employers in light of the workplace culture they want to promote.

Germany currently has no laws expressly preventing workers from checking business emails outside normal working hours, although time spent doing so would amount to working time and could lead to a worker exceeding the strict working time limits which apply.

German businesses are becoming increasingly aware of this issue and have responded by implementing internal policies specifically addressing workers' availability after work. Volkswagen (VW), for example, now has a policy that workers must not read emails on mobile devices between 6:15pm and 7am and compliance with this is enforced by specific technical settings.

Daimler has taken a different approach - it created a new feature in Outlook which workers can activate as an out-of-office reply which also automatically deletes incoming emails. The sender is informed of the deletion and referred to a colleague. The objective of this particular policy is to take the pressure off workers who might otherwise have to deal with a vast number of unread emails during working time, but relies on the worker themselves deciding when to activate the relevant mechanism.

These two examples demonstrate how different the approaches can be. While VW's policy seems to have removed the risk of breaching working time limits, a worker is potentially still confronted with a number of unread emails which need to be dealt with during working hours. Daimler's policy seems to avoid an inbox full of unread emails after an absence from the office, but does not address the issue of exceeding individual working time.

In Spain there is also no specific law requiring disconnection of devices outside of working hours. The Spanish Supreme Court has ruled, however, that if an employer wishes a worker to remain available to work beyond ordinary working hours, this must be expressly agreed with them and they must be paid at an agreed rate (or the rate specified in any relevant CBA). Whilst the time during which the worker is effectively "on call" must be paid, it will not count towards 'working time' unless they are actually required to work during the period.

Bearing in mind the current economic situation in Spain, with unemployment at nearly 25%, in practice, employees worried about keeping their jobs are unlikely to complain about unreasonable demands by an employer to remain available upon request. In fact, at present 24 hour availability is generally expected from white collar employees, and employers tend to expect an immediate response to an email sent or phone call made out of the working hours.