In the last five years, with
the development of information technology and mobile devices, the distinction
between being “at work” and “off work” has been profoundly altered.
Working time is no longer
confined to being in an office and working days are both more intense and
infinitely extendable, making monitoring working time even more complex.
Coupled with a global economy,
many employees feel that they are permanently connected to their work,
irrespective of time zones and local laws.
EU working time laws are
rapidly developing to deal with this trend and the negative impact it’s having
on employee health and wellbeing. The sanctions for employers breaching these
laws are potentially serious. This means that one of the most challenging issues
facing global companies today is juggling time zones effectively and responding
to business 24/7 without falling foul of working time laws.
Trying to figure out the local
time of employees based in different time zones is a complex task in itself.
Thankfully, there are a variety of user-friendly apps that can do the maths for
you. But understanding the labour law rules when employees are operating in a
different time zone is even more daunting, and unfortunately, no app is
available to crunch this data for us.
For example, employees working
on global projects will often be expected to dial into calls outside their
regular local business hours and/or to respond to emails late at night. Though
most internationally-minded employees may be willing to accommodate the
requirements of their manager or client based overseas, in the EU, asking
employees to work beyond their standard hours poses many challenges for
employers in complying with working time regulations.
The EU Directive on Working
Time (2003/88/EC) of 4 November 2003, directly connects working time to health
and safety matters. For this reason, it specifies a series of principles
employees should respect to preserve their sanity:
a maximum of 48 working hours
per week;
a minimum rest period of 11
hours, every 24 hours;
a minimum weekly rest period
of 24 uninterrupted hours for each 7-day period (in addition to the 11 hours
above); and
paid annual leave of at least
4 weeks per year.
There are additional working
time arrangements for specific industries such as the transport sector and sea
workers, and to make things more complex, each jurisdiction within the EU has
supplemented the Directive with its own laws and sector specific agreements, so
the variations are quasi-infinite.
The potential sanctions for
non-compliance are high-stakes for employers. They include penalties and claims
for overtime payments (sometimes over several years prior) and can extend to
criminal records for the company’s representatives, damages for breach of
contract or liability for work-related injury and harassment. In recent
debates, it has been suggested by the EU commission and selected EU countries
that not recording all workers’ working hours might constitute an offence of
undeclared work, which in turn is connected to modern slavery, and can have a
severe impact on an organisation’s reputation and brand.
In recent debates, it has been
suggested by the EU commission and selected EU countries that not recording all
workers’ working hours might constitute an offence of undeclared work, which in
turn is connected to modern slavery, and can have a severe impact on an
organisation’s reputation and brand.
France, a pioneer in intricate
working time laws, introduced a new Labour Law on 2 August 2016, safeguarding
an employee’s ‘right and duty to switch off from work’. This right was
previously found in the Syntec collective bargaining agreement governing most
software companies in France and was utilised in a handful of workplace
agreements of major French groups and even some German groups. They have made
this part of the labour code, thus obliging all employers in France to include
this topic in their annual negotiations effective January 2017.
In practice, French employees
will still be allowed to occasionally join late calls or work with colleagues
in different time zones, but employers should avoid expecting this routinely
from their employees and managers. Though it is still unclear how the reform
will fully play out, we anticipate employers will, beyond the negotiation
obligations explained above, need to implement a mechanism, and, for those
employing more than 300 employees, launch a corporate policy, ensuring such a
right is effectively recognised and takes into account specific business working
patterns and requirements.
Some employers may choose to
simply pay lip service to the reform, yet it clearly states that from 1 January
2017 companies will have a duty to actively support the employee’s right to
switch off their devices: this will include, as a strict minimum, verifying
employees comply with rest periods and stating that they are allowed not to
respond to emails during rest periods – or even ensuring software supports
compliance.
A straightforward approach
could be to adopt a policy allowing employees who work internationally to start
work later or earlier, raising awareness of the virtues of having a healthy
work life balance, creating group discussions to propose practical solutions to
achieve work life balance, and monitoring with employees’ input any issues
relating to excessive connections to their work device.
For companies who have a
health and safety committee, they must be closely involved in the design and
monitoring of the company’s plans.
Ming Henderson is a partner in
our International Employment Law practice based in the London office. She is a
qualified practitioner in both France and the UK.
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