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Global Employment briefing: France, October 2018

  • France
  • Employment law

03-10-2018

Workload and working-time: Increased flexibility for employees but more requirements for employers

From 2017, legislators and the new Government have been seeking to increase flexibility in the management of working-time and well-being in the workplace, for example by improving flexible working from home. However, this increased flexibility has to be balanced against other regulations and case law which have recently added further employer obligations.

The development of technology allows employees to have more flexibility in organising their schedule. At the same time, employers must check that their employees’ workload is not excessive and that a so-called ‘right to disconnect’ is implemented outside of working hours. This right to disconnect was implemented on 1st January 2017.

The right to disconnect is split into two obligations for the employer:

  • In companies subject to mandatory annual negotiation (‘NAO’: i.e. with at least 50 employees and one union representative appointed), an annual negotiation on professional equal treatment between women and men and quality of life at work must be organised and, if successful, can result in a collective agreement. If not successful, or if the company is not subject to NAO, an internal policy may be signed.
  • Since 10 August 2016, collective agreements that authorise individual day package agreements (so-called “forfait-jours” i.e. working-time arrangements which exclude any rights to overtime payment) must provide the conditions by which employees have the right to disconnect. This applies to individual day package agreements that have been entered into since that date.

The right to disconnect covers very diverse situations. It goes from mere recommendations aimed at informing employees that they have no obligation, and will incur no disciplinary action, if they do not answer internal requests outside working hours, to binding measures such as ‘forced’ disconnection from electronic devices at certain periods of time. In any event, all collective agreement entered into should include measures allowing employees to preserve weekly and daily rests and their private and family life.

Where working conditions deteriorate, this can impact on the life of employees, even outside of work. The boundaries between working-time and private life are getting harder to establish. For example, the Court of Appeal ruled that suicide outside the work place and not in working time could be recognised as a work-related accident if it resulted from a deterioration in working conditions and even if it happened when the employee was not under the supervision of his employer. The employer can be blamed if the cause of the suicide is found in stressful management circumstances affecting employees personally, including criticisms of their targets and hours as well as a manager’s contemptuous attitude.

Well-being at work also means a harassment-free workplace. The courts are increasingly more severe when dealing with harassment cases and there is a stronger obligation for employers to monitor the workload of their employees as well as the relationships the employees have with their colleagues and supervisors. For example, the Supreme Court recently penalised an employer both for the fact that an employee had been harassed and for the lack of preventative measures in place to avoid it.

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