The rise of remote and hybrid working, combined with the widespread use of smartphones and other digital tools, has made it increasingly difficult to draw a clear line between work and personal time. As employees remain more easily reachable outside normal working hours, legislators and regulators in a growing number of jurisdictions have introduced measures to protect rest periods, work-life balance and personal time.

In response, some jurisdictions have introduced a “right to disconnect” to help protect employees’ time away from work. While the detail varies between countries, the general aim is to reduce the expectation that employees should monitor or respond to work-related communications outside working hours. In some jurisdictions, employers must implement policies, procedures or training measures to support disconnection, while others give employees a more direct right not to engage with work-related contact during rest periods. This article considers the position in France, Australia and Colombia.

The right to disconnect is enshrined in the French Labour Code as one of the mandatory subjects of annual negotiations on quality of working life and working conditions.

As part of the mandatory periodic negotiations, the social partners must negotiate on the terms and conditions for employees to fully exercise their right to disconnect. They must also negotiate on the employer’s implementation of regulatory measures for the use of digital tools, with a view to ensuring that rest and leave time, as well as personal and family life, are respected.

In the absence of a collective agreement, the employer is required to prepare a charter, after consulting the social and economic committee. This charter must define the terms and conditions for exercising the right to disconnect and must further provide for the implementation of training and awareness-raising actions for employees and managerial and executive staff on the reasonable use of digital tools.

The law does not impose on the employer a strict obligation in relation to outcomes with regard to the right to disconnect, rather, it requires the employer to set out the arrangements for its exercise, which constitutes a qualified best-efforts obligation.

Australia approaches the issue from a different angle, focusing less on mandatory employer policy-making and more on protecting employees who reasonably refuse to engage with out-of-hours contact.

The right to disconnect under the Fair Work Act protects employees who refuse to monitor, read or respond to work-related contact outside their working hours, unless their refusal is unreasonable. This includes contact or attempted contact from an employer or another person where the communication is work-related.

Importantly, the legislation does not prohibit all out-of-hours contact. Employers must consider whether expecting or requiring a response is reasonable in the circumstances. Relevant factors include:

• the reason for the contact;
• the manner in which the contact is made;
• the level of disruption to the employee;
• whether the employee is compensated or paid additional amounts to remain available;
• the employee’s role and level of responsibility; and
• the employee’s personal circumstances.

If a dispute regarding an employee’s exercise of their right to disconnect cannot be resolved at workplace level, the employee may apply to the Fair Work Commission.

Colombia adopts a more express statutory approach, combining a right not to perform work-related tasks during rest periods with employer obligations to maintain a disconnection policy.

Colombia has a law giving employees the right to disconnect. Employees are not obligated to perform work-related tasks outside of their working hours or during their vacations or rest periods. Failure to observe the right to disconnect may constitute workplace harassment and a breach of employees’ labour rights.

Further, employers are required to have a workplace disconnection policy, which must set out at least the following:

• how the right to disconnect will be guaranteed and exercised, including guidelines on the use of information and communication technologies;
• a procedure to establish the mechanisms and means through which employees can file complaints regarding violations of this right, either personally or anonymously; and
• an internal procedure for processing complaints that ensures due process, including mechanisms for conflict resolution and verification of compliance with the agreements reached and the cessation of the conduct.

An employee who believes their right to disconnection has been violated may also report the situation to the Labour Inspector.

Taken together, these examples show that the right to disconnect is not developing as a single uniform model. For employers, the practical question is therefore not only whether out-of-hours contact is permitted, but what processes, policies or safeguards are required in each jurisdiction.

As regulation of the right to disconnect continues to evolve, employers should review how and when employees are contacted outside working hours. Depending on the jurisdiction, obligations may range from implementing policies and training programmes to ensuring that out-of-hours communications are reasonable and do not interfere with employees’ rest periods, leave or personal life.