Can Europe effectively legislate the right to work-life balance?

New legislation could freeze the always-on culture around remote work.
New legislation could freeze the always-on culture around remote work.
Image: Reuters/Eva Plevier/File Photo
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In 2019, Alex Agius Saliba was running for a seat in the European Parliament. As he drove around his native country of Malta, knocking on doors, and speaking to people about their problems, he noticed a trend: families overwhelmed with responsibilities; fathers replying to emails in the evenings; mothers feeling stressed and exhausted; children feeling neglected. The trouble, he felt, was that the line between work and life had become blurred.

Saliba looked around at what other EU member states were doing about this and came upon a law passed in France in 2016 giving workers the right to disconnect from work-related emails, calls, and other forms of digital communication outside of their working hours. This right part of a broad reform of the country’s labor code following a wave of employee suicides in high-profile companies in France in the 2000s. These tragic events fueled the fight for the protection of worker’s physical and mental health—or what the French call “psychosocial risks” (some links in French).

The right to disconnect from emails is not the labor equivalent of a first-world problem—blue-collar workers face the pressure of digital tools too. In fact, one of the legal rulings that laid the foundation for the right to disconnect in France involved a paramedic who was fired in 2014 because he didn’t pick up his phone when his employer called outside of working hours with an emergency. The court ruled that “not being reachable outside working hours on his personal mobile phone…does not justify dismissal for serious misconduct.”

Saliba ran on the promise that he would help pass a “right to disconnect” for all European workers. He became a member of the European Parliament in May 2019—nine months before Europe locked down as the coronavirus spread, forcing millions to work from home. This exacerbated existing problems tied to digital and remote work, from burnout to a lack of work-life balance. When your home is your office, there’s no end to the work day. There’s no 5pm cutoff or monitor to shut down. Everyone is stuck at home, so emails start coming in at all hours. Many have care responsibilities on top of it, leading to gender inequality in domestic and professional life.

In short, Covid-19 brought the debate over the need for a right to disconnect to the forefront of European politics.

Europe has a rich history of prioritizing workers’ protections. In this case, trade unions have led the charge, with employees, private sector representatives, and EU politicians helping to move the issue forward. But while the motivation behind their efforts—to preserve work-life balance in a digital age—is laudable, not everyone is convinced this is the best way to go about it. So, is legislating the right to disconnect a solution to what ails today’s worker?

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Covid-19 and the right to disconnect

The pandemic made the debate over the right to disconnect more relevant because it made remote work routine in Europe in a way it wasn’t before. In 2019, only 5.4% of all European employees (pdf) usually worked from home, while only 15% of them had ever worked remotely. Now, according to the European Foundation for the Improvement of Living and Working Conditions (Eurofound)(pdf), roughly 35% of EU employees work exclusively from home, with another 14% working partially from home.

It’s a tectonic shift that took place in a short space of time, and working habits didn’t adjust as quickly. Because of the lockdown, people couldn’t do the things that would previously have created a natural boundary for their work day, such as commuting. Many had to care for a child or an elderly parent while they worked, as anxiety over job losses and the pandemic skyrocketed.

An “always-on” work culture took hold of people’s lives. In the same Eurofound survey from June, 24% of those who said they worked from home reported working in their free time. That burden isn’t shared evenly across the EU, in part because some workers in countries who had adopted remote work more widely before the pandemic felt better equipped to balance it with their private lives. There are also cultural factors at play: Germanic and Nordic people have some of the best work-life balance of any rich country. There’s even a German word for the time when work ends and leisure or rest time begins: Feierabend. Only 5% of German workers told Eurofound that they work in their free time every day, versus almost 14% in Spain.

In other words, Covid-19 didn’t so much cause new problems as highlight and exacerbate existing ones.

In response, countries like Ireland, Greece, and Germany drafted laws and opened consultations on the rights of remote workers. In June, Europe’s social partners, the employer organizations and unions that engage in dialogue around labor issues on behalf of the EU, negotiated a framework for a digital world of work. The second of four articles (pdf, p. 10) dealt with “connecting and disconnecting” from work, and recommended that employers invest in training on the risks of digital addiction, respect employees’ working hours, and not penalize employees for being unavailable outside of working hours. These suggestions echo the vagueness of France’s right to disconnect legislation, in that they are  intended to give employers and employees leeway to agree on what’s right for them. But critics say the looseness leaves too much room for interpretation.

In a few weeks, the European Parliament will consider whether these kinds of measures should become law for 450 million people. But there’s still a lot of confusion and misunderstanding about what the right to disconnect is and isn’t. The case of France, a pioneer in this field, can help clear it up.

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A French right to disconnect

When it comes to labor laws, the French are often misunderstood or caricatured. French workers are depicted in the media and on TV shows, like Netflix’s Emily in Paris, as lazy and unproductive.

Myriam El Khomri, France’s ex-Labor minister who is now consulting director at the insurance brokerage SIACI Saint Honoré, confronted the same stereotypes in 2016 when she worked to pass a reform of the labor code that included, for the first time, the right to disconnect. “We were made fun of,” she says. “I remember the American media at the time saying that in France, from Friday at 5pm, you could never send an email again.”

The idea of enshrining a right for people to turn off from work has been around since the early 2000s, as laptops and cell phones became widely used by executives. In 2001, France’s highest court, the Cour de Cassation, ruled that employees can’t be made to “agree to work from home or to install their files and work tools there.”

Trade unions like the Ugict-CGT, which represents engineers, managers, technicians, and supervisors, lobbied the French government to do something about this problem. Orange, which used to be called France Telecom, experienced a wave of employee suicides between 2007 and 2010 linked to toxic working conditions. In 2015, the Labor Ministry asked Bruno Mettling, the company’s deputy general director of telecommunications at the time, to assemble a taskforce to study the effects of digitalization on working life.  The result was a report (pdf, p. 20) which concluded that “the right to disconnect is a joint responsibility of the employee and the employer, which also implies a duty to disconnect.”

El Khomri incorporated the recommendations of the report into a 2016 law that changed the rules governing relations between employers and employees. The El Khomri Law doesn’t define the right to disconnect but it says that at least once every four years, when companies with more than 50 employees (about 80% of the country’s workers) negotiate hourly rates and other measures with unions, they should also decide “the terms according to which employees can exercise their right to disconnect.”

As part of that collective bargaining effort, the law states employers must find ways to “regulate the use of digital tools, with a view to” preserving employees’ leave time and personal life.

That can mean many things, from shutting off servers on the weekends to limiting internal emails.

Employees need to do their part too. Jérôme Chemin, national secretary of the CFDT Cadres, one of France’s major trade unions, says they brought in a counselor who spoke to employees about the dangers of tech addiction, likening it to drug or alcohol dependency. That resonates with people, he says, because they see that these behaviors can be problematic no matter the medium.

While the law is flexible and leaves the terms of the right to disconnect up to each company, there are penalties for non-compliance. In 2018, the Cour de Cassation forced a British company to pay a French ex-employee known only as Mr. Y nearly €61,000 ($74,100) after he complained that he was forced to leave his phone on at all times and be on call for emergencies on weekends and evenings but wasn’t paid extra for his troubles. “No job should and can require working 24 hours a day,” says El Khomri of the ruling. “The permanent obligation to be connected doesn’t stand before a judge.”

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Right to disconnect: burden or bulwark?

The right to disconnect came into force in France in 2017. Opinion is divided as to whether it’s actually helped workers. Even its architects acknowledge weaknesses. “In the field, we see that it doesn’t work and that it’s not implemented,” says Jean-Luc Molins, who worked on the Mettling report as national secretary of the Ugict-CGT.

The main problem seems to be that the law is intentionally vague, so that it leaves a lot of room for companies to not implement it if they don’t want to. If a company can’t reach an agreement with employees, it can unilaterally implement a charter on the right to disconnect, setting out its own rules against the union representatives’ wishes.

While the initial lobbying around the right to disconnect in France was driven by unions representing managers and executives, El Khomri recalls that when the proposed reform to the Labor Law first came out, “we had half of the unions supporting us and the other half not.” France’s first and third largest unions, the CGT and the FO, opposed the law, finding that it weakened key protections and benefited employers over employees, notably by making it easier to fire people for economic reasons. Of course, the law was broader than just the one item securing the right to disconnect, but this shows that even workers struggled to agree on these issues.

Some argue the solution to the problem of digital tools of work taking over our lives isn’t more laws. “If the culture and management practices are driving, even unintentionally, that feeling of you’ve got to be switched on, then legislative change won’t be enough on its own,” says Rachel Suff, a senior adviser at the Chartered Institute of Personnel and Development, a UK-based membership organization for human resources professionals.

Many companies “clearly aren’t complying with health and safety legislation that’s already in place,” Suff adds, “so another piece of legislation wouldn’t necessarily be the magic answer.” For example, a 2003 “Working Time Directive” already requires EU companies to guarantee workers certain rights, such as one break a day, a capped work week, and at least four weeks of paid annual leave. But workers can individually opt out of those rules and countries can create exemptions for categories of workers, such as managers, and workers in seasonal industries like agriculture.

Flexible hours and remote work can be a boon for working parents, who might prefer to take a couple of hours off to pick up their kids from school before returning to work. It would be a shame if rigid workplace charters on the right to disconnect made that impossible, argues Suff, who is in favor of more flexible arrangements at company level. In Germany, for example, automaker Daimler gave 100,000 of its employees the option of automatically redirecting the emails they received while on holiday to available coworkers, in order to avoid the stress of a full inbox upon return. (This 2014 example is cited in the Mettling report.)

But Covid-19 has shown the limits of self-directed change at the company level. In the example above, in pandemic times, flexible work has proven to be a nightmare for some parents whose kids are not in school, and whose company expects the same output without consideration for a person’s individual circumstances. El Khomri believes that employers are now “much more conscious, with the crisis we’re living through, of the limitations of the way we currently organize work.”

The EU seems to be going down the path of legislation. In Dec. 2019, the European Parliament’s Committee on Employment and Social Affairs drafted what’s called an own-initiative report on the right to disconnect, requesting that the European Commission put forward a proposal for a law on the issue. The Committee submitted its proposal to the European Parliament in July, with Saliba as rapporteur. The report was adopted by the Committee on Dec. 1 and MEPs will vote on it in January. Nicolas Schmit, European commissioner for jobs and social rights, has thrown his support behind it.

If passed, Parliament will refer the proposal to the European Commission and it could become law across the EU. It would “entitle workers to switch off work-related tools and not to respond to employers’ requests outside working time, with no risk of adverse consequences.” The right won’t be limited to companies with 50 or more employees or give employers an out if they can’t reach an agreement.

Still, real change will require a large-scale shift in our approach to work and to life, says Alke Boessiger, deputy general secretary of UNI Global Union, a Switzerland-based union. Boessiger describes work-life balance as a living, breathing experiment for both employers and employees. “Having a rule, a right, an obligation is not enough,” she says. “You need to actually work and live with it to make it happen every day.”