Aside from tax measures, the so-called Summer Agreement of July 2017 contained a section on employment law. One of the announced measures relates to the possibility for employees to disconnect outside working hours and forms the subject of a recent bill. Although the bill has yet to be passed, we thought it could be useful to take a look at what the government is trying to achieve.

Inspiration from abroad

The right to disconnect is not a new concept.

For example, France recently passed legislation providing for such a right. Pursuant to the new law, since 1 January 2017, companies are required to have rules to prevent adverse effects on their employees' personal and family lives caused by hyperconnectedness. As the French law does not stipulate precise rules this regard, French companies have implemented it in various ways.

Thus, the French press reports that although many companies have only vague principles, others have taken concrete steps (e.g. blocking work emails at weekends). A study by the French Institute of Public Opinion (IFOP) shows that these steps have yet to bear fruit: 78% of executives surveyed stated that they read work communications on holidays and at weekends, and 51% consider this to be a source of stress.

In Germany, some companies have taken similar initiatives. Thus, Volkswagen turns off its email servers outside office hours.

If it rains in Paris, it drizzles in Brussels

The Belgian bill is not as far-reaching as the French legislation. It does not provide for a right to disconnect, only an obligation for companies to discuss the issue and the use of electronic communication devices at "regular intervals" and whenever the employee representatives so request, within the company's health and safety committee. As with other issues related to employee welfare, if there is no health and safety committee, the union delegation is responsible for ensuring dialogue on the subject and, in the absence thereof,  the employees must be consulted directly. The aim of the new measure is to combat excessive occupational stress and burn-outs, ensure respect for rest periods and annual and other holidays, and ensure a healthy work-life balance.

The measure gives businesses leeway to work out a tailor-made company policy on disconnection and the use of electronic communication devices. The policy can address the following types of questions:

• Are employees expected to reply to emails outside working hours?
• Are employees expected or required to answer telephone calls outside working hours?
• Should it be possible to contact employees who are on holiday?

In the legislative history, the government indicates the possibility to adjust the ability to disconnect to the individual employee's position. Indeed, it seems logical that managers and administrative staff should not be subject to the same rules.

The right to disconnect and the rules on working time

Although the government expressly states its unwillingness to introduce a general right to disconnect, this does not mean that anything goes. On the contrary, employees (still) have the right not to be online when their working day is done, as (barring a number of exceptions, the most important of which apply to persons holding managerial or fiduciary positions) it is unlawful for employers to request employees to work outside their set schedules, i.e. to be connected, answer emails and phone calls, etc., after their working day is done.

It should be noted that a poorly drafted disconnection policy can have significant consequences. For instance, if a company, in consultation with its employee representatives, issues a policy stating that employees should be available, to some degree, to answer emails and telephone calls after working hours, the time they spend doing so may qualify as working time, for which overtime pay will be due.

Therefore, when drafting a disconnection policy, it is important to keep in mind the rules on working time and overtime.

Start thinking about it!

Although the bill has yet to be adopted, employers should already start thinking about how electronic communication devices are used by their employees and staff. Are certain categories of employees hyperconnected? Does this situation threaten their welfare? What type of culture do managers promote in respect of emails outside working hours?