An increase in global digitization has gradually blurred the boundaries between work and private life. This has resulted in employees using technological devices such as smartphones and tablets to remain “connected” to work outside of the ordinary working hours. As a result, there has been much debate, globally, concerning the enactment of a human right referred to as the “right to disconnect”. The right to disconnect essentially entitles an employee to disconnect from his or her work or refuse to engage in work-related communications, i.e. calls and emails, during non-working hours.
So, who is doing it?
In 2017, France became the first country to enact a law concerning the right to disconnect. Since then, countries such as Italy, Belgium, the Netherlands, Luxembourg, India, the Philippines and Canada have also considered, proposed or adopted such a right. Spain is the most recent country to adopt a form of right to disconnect, allowing employees to disconnect during rest periods and holidays.
In France, the idea of the “right to disconnect” was first toyed with in 2001 when the French Supreme Court ruled that employees are under no obligation to bring work home. As technology evolved, the Court continued updating its view and in 2004, for example, it was established that it was not misconduct if an employee was not reachable on a smartphone outside of work hours. France’s El Khomri law requires every employment contract must include negotiated obligations setting out what is required of an employee regarding the level of connectivity necessary outside of working hours. The law is fairly inexplicit and does not prohibit after-hours work communication, but rather obliges employers to negotiate these terms clearly with prospective employees. Italy’s law also only extends to the requirement of contractual clarity regarding an employee's responsibility to communicate outside of working hours.
Earlier this year, the New York City Council held hearings on a proposed bill entitling employees to disconnect from electronic communications during non-working hours. If passed, the law would require employers to adopt a written policy governing the use of electronic devices and other digital communications during non-working hours, and would set forth the ordinary working hours for each class of employee. The bill, in its present form, provides for fairly low administrative fines for violation, which may not be seen as a deterrent by some organisations.
What is the position in South Africa?
South Africa has not yet expressly adopted such a right. Although, the Basic Conditions of Employment Act, 1997 (“BCEA”), which regulates working hours and overtime, provides certain protections for vulnerable workers.
The BCEA provides that an employer may not require an employee earning below the minimum earnings threshold of R205, 433.30 (approximately R17,000 per month) to work overtime, except in accordance with an agreement to do so (and for additional remuneration paid at an increased rate of 1.5 times the employee’s ordinary rate of pay). Neither the preclusion from working overtime nor the increased rate of pay, however, is applicable to employees earning in excess of the threshold. The reason for this is that employees earning above the threshold are not viewed as “vulnerable employees” and are recognised as having sufficient bargaining power to negotiate more vigorously with their employers (therefore being less susceptible to being taken advantage of by their employer).
How this plays out in practice in large corporates and multinationals, particularly in respect of employees earning in excess of the threshold, is the inclusion of a clause in employment agreements which requires employees to work in excess of their contracted ordinary working hours for no additional remuneration.
Will South Africa dial into the global trend?
The difficulty with the right to disconnect is the increasingly globalised nature of many jobs and businesses. Technology has irrefutably allowed for increased connectivity across time zones, inherently making many businesses more efficient. A simple blanket ban on communication outside of ordinary working hours is not a practical solution, specifically not in South Africa which is seeking to compete with developed countries.
South African employers should be more mindful that if the nature of a job requires availability after hours, such expectations should be stated formally as a part of an employee’s job responsibilities. In practice, large employers do seem to address whether employees would be required to work or be available after hours, even in the absence of a statutory obligation to do so. However, employers generally may, in future, start to see pushback during the negotiation of employment agreements, especially with Millennials and Gen Zs entering the job market. The issue may also become a topic for collective bargaining. This pushback may, at some stage, necessitate the inclusion of a provision in the BCEA (or other such applicable legislation at the time) which deals with the right to disconnect or the obligation on employers to negotiate terms governing the use of electronic devices and other digital communications during non-working hours. However, the legislative disconnect between South Africa and developed countries is likely to remain for at least the near future.