Bruno Mettling is at the origin of the French situation on the right to disconnect. Former HRD of Orange, now at the head of the consulting firm Topics, he submitted a report in 2015 on the right to disconnect, which gave rise to a law.
franceinfo: What about today, can an employee take advantage of his right to disconnect in order not to answer his emails outside working hours without being penalized?
Bruno Mettling: This is the definition of the right to disconnect. No one should be criticized for not being logged in outside of their working hours. This is the law, the labor code. Then the concrete modalities of implementation, beyond the general principle, on which anyone can rely if requested and if it is sanctioned, the concrete practice of the implementation of this right, it is declines company by company within the framework of social negotiations.
Do judges recognize this right and apply it?
The law is very clear in principle. The judge will look at what has been negotiated but an employee who is sanctioned for not having been connected outside working hours can take advantage of this infringement of his right.
Even if all this is negotiated company by company …
France was one of the very first countries to implement this right. I still remember your American colleagues interviewing me and making fun of these French people who thought only of not working, while today all companies in San Francisco are availing themselves of this right to disconnect.
From time to time when our country is ahead in the field of employee defense, we must know how to underline it. Today the European Commission is asking us questions. We are clearly a pioneer in this area.
Bruno Mettling, former HR Director of Orange
That said, the problem we have in implementing this right is the great diversity of situations. You have employees who are faced with production tools for which the right to disconnect does not really arise in the measure. And others who, because of their profession, take the risk of being constantly called upon by their company or by colleagues outside of working hours. So we can see that it is complicated to define the terms of application of the rule except to make a labor code of X pages and that would not make sense.
So the law refers to an obligation of companies to negotiate an agreement. Only 16% of companies go so far as to concretely define the non-use of tools on weekends or after a certain hour. There are also companies which have defined charters of good practice so that all employees are well informed. And then there are still too many companies that have not concretely declined this right. And that’s what is in front of us, because with teleworking, the precise definition of this right becomes, company by company, essential.
But for companies that have done nothing, there is no penalty?
In terms of social law, my experience is that when you have a new right, on a ground that is being built, it is important not to pretend to be in the sanction. On the other hand, I think that the time has come to take a shared assessment, in the social dialogue, of the implementation of this right, and to see how we can progress in the generalization of this right.