The ever-increasing blurring of our private and professional lives has long been a hot topic.  With Blackberries, smartphones, iPad and other mobile devices becoming more prevalent in society, more workers than ever are taking their work home with them and  are responding to calls and emails in the evenings, at weekends and even on holiday.  For some, this is something they actively choose to do.  For others, it is more of a chore and is only done because of a perception that it is expected.

For employers across the Continent and on the other side of the Atlantic, the issue gives rise to a number of considerations, particularly around health and safety.  Some have already taken action – for example Volkswagen’s servers are set so that emails are not forwarded to workers’ Blackberries between the hours of 6.15pm and 7am or at weekends and in France an agreement was signed last week between employers’ federations and unions representing workers in the digital and consultancy fields regarding out of work email access.

The deal, which was so widely misreported by the English-speaking media that a French government minister was forced to tweet a denial (in English) of some of the more extreme interpretations, will not affect one million workers and does not constitute a blanket ban on emails being sent after 6pm, as was reported.  Instead, between 200,000 and 250,000 “autonomous” workers at institutions like Google, Facebook, Deloitte and PWC will be obliged to disconnect from communication devices for up to 11 hours a day.  The agreement also applies to consultants and other workers who work for companies on a ‘project’ basis.

The concept of “autonomous” workers comes from the European Working Time Directive, which regulates working time across the EU.  In the UK, the Working Time Regulations define an autonomous worker as a worker who “on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself” and is said to include “managing executives or other persons with autonomous decision-taking powers”; “family workers”; or “workers officiating at religious ceremonies in churches and religious communities”.

The agreement stems from a decision by a French judge in September last year, who held that there was insufficient protection for autonomous workers in respect of their health and rest time.  This decision followed a challenge to a law that came into force under President Sarkozy, which stated that autonomous workers can legally work up to 13 hours a day.  The agreement therefore ensures that once those workers have worked those hours they will not be criticised for not dealing with ‘after hours’ emails.  Specifically, the agreement states that autonomous workers are entitled to a daily rest period of 11 hours and a weekly rest period of 35 hours during which time there exists “une obligation de déconnexion des outils de communication à distance” (roughly translated as an obligation to disconnect distance communication tools) and employers are required to put in place measures to ensure this can and does happen.   The agreement stresses that it is not endorsing a 13-hour day but is in place to ensure this is the absolute maximum time spent dealing with work-related issues.

Working time in the UK is regulated by the Working Time Regulations, which are derived from the EU Working Time Directive.  The Regulations provide for a maximum 48-hour week, although employees can opt out of this maximum and many do.  The Regulations set out rules as to adequate rest breaks and rest periods.  Most workers, unless they are exempt, are entitled to 11 hours’ uninterrupted rest per day, 24 hours’ uninterrupted rest per week (or 48 hours per fortnight) and a rest break of 20 minutes when working more than six hours a day.

The Working Time Regulations do not usually apply to time spent “on call” away from the workplace, travelling to the workplace, attending work related social events, unpaid voluntary overtime or responding to telephone calls voluntarily out of hours.  Time spent responding to emails and taking telephone calls after hours is therefore not counted as working time for the purposes of the Regulations. Workers with autonomous decision-making powers are exempt from the limits on average weekly working time, limits on the duration of night work, the rights to daily and weekly rest periods and breaks and the need for their employers to keep records of these workers’ working time.  It is these workers to whom the agreement in France applies.

The French deal has provoked many comments, some positive and some less so.  However, supporters of the idea will point to recent research that suggests workers who work in short, sharp bursts are more productive than those who work 60-hour weeks.  According to a recent report from the Organisation for Economic Cooperation and Development, 12 European countries have lower average hours worked per person than the UK.  Of those12, 11 have a higher GDP per hour worked than the UK.  Norway has the third lowest number of average hours worked and yet delivers the highest productivity.  German and Dutch workers also work less than UK workers and yet both are more productive than UK employees.

In Sweden, Gothenburg City Council is putting this to the test.  The Council is set to cut the number of hours staff work in one of its departments to six a day on a trial basis as part of an experiment to assess productivity.   The Council is not the first employer to implement shorter working days.  During the Great Depression in the 1930s, W K Kellogg replaced the three daily eight-hour shifts at his plant in Michigan with four six-hour shifts, which resulted in the company hiring hundreds of new staff, production costs falling and employees operating more efficiently.   Whether similar results will be seen in Sweden remains to be seen. In short, the answer is yes and there is no reason why a similar deal could not be proposed by trade unions here.  The UK equivalent workers to those affected by the French agreement do not currently have much protection under the Working Time Regulations and it would be surprising if bodies representing those employees have not already given thought as to what could be done to protect them.

Whether UK employers would agree to any such deal remains to be seen and concerns have been voiced both in the UK and abroad about the enforceability and feasibility of the proposal at the core of the French agreement.   One of the most obvious issues raised is the question of how client service can be maintained in the face of such an agreement, particularly in today’s global marketplace.  Certain roles (and perhaps even entire industries) simply would not lend themselves to such an agreement but with work-related stress on the rise, anything that helps to reduce the impact of long working hours – whether those hours are done in the office or on the move – is likely to be of interest to unions and employees.  If a by-product of such a deal is an increase in productivity, then employers are likely to be in favour too.