Calling time on email?

French employees celebrated the New Year with a new law coming into force that offers French workers the “right to disconnect” from their email.

Employers with more than 50 people will be required to start negotiations to define the rights of employees to ignore their digital devices at the end of the normal working day. If an agreement cannot be reached then employers will have to publish a charter setting out explicitly what is required outside of normal working hours. The aim is to tackle the culture of expectation that employees are always available and the effects on family life and health this may have.

No such requirement exists in English law. Most employees’ contracts will contain provisions which set out defined working hours but also require employees “to work such additional hours as are necessary for their proper performance of their duties” or the like, and commonly this is without any additional remuneration. This in effect means that many employees, particularly senior ones will often continue to work remotely on phones or laptops once they have left the office.

While there is currently no difficulty with asking employees to work outside of normal contracted hours and most employees will do so sensibly and without complaint, it is worth remembering that despite the absence of a requirement like the French one, there are legal restrictions which employers need to adhere to for all workers:

• 48 hour maximum average working week: It is difficult to monitor how much work may be done from home. Workers can opt out of this provision but generally it is not ‘recommended’ that employees do this as a matter of course, particularly if they are junior;
• Rest breaks: workers must have a complete rest break of 20 minutes for every six hours worked. This must be away from their normal workstation. What constitutes a ‘work station’ is becoming increasingly mobile. Workers must also have 11 hours uninterrupted rest in every 24 hours;
• On-Call time: care needs to be taken when a worker is not considered to be ‘on-call’. This can lead to large amounts of time when a worker is away from the office being considered working time. It can also mean that they are entitled to the national minimum wage for all of such period. This can be very contrary to what the employer intended;
• Record keeping: records must be kept showing whether the limits on average working time are being complied with. This is not easy if the work is done remotely and cannot be effectively monitored.

Most employees enjoy the freedom that mobile devices give them and answering the odd email after hours is unlikely to ever be a problem, but in the increasingly digital and mobile world it is important not to lose sight of the legislation designed to protect employees’ health and safety. As technology encroaches more and more on daily life, delineating the boundaries between work and home becomes increasingly difficult. With the mental health of employees an ever increasingly important consideration, this is not something any employer can afford to ignore. Progressive employers will take the lead and review their policies and requirements now.

If you have any questions regarding this topic or any employment issue, please contact any member of the Edwin Coe Employment team.

If you aren’t receiving our legal updates directly to your mailbox, please sign up now