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On 16th May 2016 the French National Assembly voted to pass a Bill preventing employees from sending emails outside working hours. This follows a labour agreement signed in 2014 by employers’ federations and workers’ unions in the French technology and consultancy sectors that required employees to avoid checking work emails after 6pm.
Technology means that we are all available at any time, any place and anywhere, so such a prohibition may be welcome news for many employees who feel under pressure to be available to clients and customers 24/7 and to please their employer. A ban along the lines of that proposed in France would go some way to protecting the health, safety and well-being of the employee of a demanding business. By enforcing a rest period employees should be fresh to deal properly with their work communications during normal working hours.
The Working Time Regulations impose maximum working hours, but time spent by an employee dealing with an email out of working hours is unlikely to be covered and many employees opt out of the maximum working week anyway. Given the ease of communications, many employees do not see a problem with a reasonable amount of work communication outside of working hours.
Employers too may benefit. Many people treat text messages and emails as an informal means of communication, never imagining that they may be produced as evidence in Court. Employers are vicariously liable for their employees’ acts and even an informal email tapped out on a ‘phone in a rush out of working hours can be produced later as evidence.
However businesses may be concerned that a ban, even if enforceable, would prevent them from pursuing legitimate commercial opportunities. In an increasingly competitive market place, if their employees are not available to take that big new order then someone else surely will be.
In our blog earlier this year we reported on a decision of the European Court of Human Rights that confirmed that employers can monitor their employees’ emails, provided that appropriate steps are taken to limit their expectations of privacy. In that case the Court recognised that there has to be a fair balance between the employee’s respect for his private life and his correspondence and his employer’s interests. Surely a balancing exercise similar to that propounded by the Court in that case must apply when considering whether employees can be positively prevented from using technology in their own time.