Background

Do we need a new labour law or improve on the existing one to capture the new realities? This remains the fundamental question in the minds of stakeholders against the backdrop of embracing information and communication technology (ICT) in the workplace.

The advent, growth and development of new forms of ICT, alongside its dynamism, has made life easier than before for most, if not all, people. The Internet has grown to become a window of people’s homes to the world. A while back, the concepts of video-conferencing, e-shopping, e-mails, e-banking and online administration of tasks seemed like fiction. Today, they are a reality and are continually growing and expanding.

Fundamentally, the workplace has not been left behind in this digital transformation. The workplace has transitioned from the traditional brick-and-mortar office to a more mobile dispensation. Consequently, employees are now able to work remotely from their places of comfort. More surprisingly, the lines between workplace and home, have increasingly become blurred and there has been a transition from the workplace into the home and from home into the workplace.

That notwithstanding, ICT already forms a fundamental part of the present and future pillars of social and economic development. Indeed, people’s daily lives currently revolve around their mobile phones and laptops. They are connected to these devices receiving and responding to calls, responding to live messages and live chats as well as e-mails. It needs to be appreciated therefore that nowadays, the office is everywhere – in the airport, at the train stations, restaurants, at home, etc.

Even so, the non-ethical and unchecked use and application of ICT have thrown into disarray and jeopardy the basic rights of employees to rest, private life and  occupational safety and health. A study by EuroFound in 2020, ‘Industrial relations Right to disconnect in the 27 EU Member States’, Working Paper, found that people who regularly work from home are more than twice as likely to work in excess of the requisite maximum 48 hours per week and are at risk of resting for less than the requisite 11 hours between working days. Almost 30% of these teleworkers report working in their free time every day or several times a week, compared to less than 5% of office-based workers. The Report also cited that teleworkers are also more likely to work irregular hours.

The right to disconnect

Ordinarily, remote work has been difficult to contain due to the increased use of ICT in the past decade and the same was exacerbated by the COVID-19 pandemic. In the midst of this new global labour reality, an employee’s ability to delink from technology has become a matter of immediate essence as a way of guaranteeing the much-needed work-life balance, as a way of preventing occupational health hazards.

With the new controversies in the fields of labour relations and law on health and safety at work, stakeholders are increasingly asking them various questions. How does the law ensure that digital tools, despite their positive output, do not become harmful to the employees? How do stakeholders ensure that labour laws continue to perform their protective role? Do we need to entrench the right to disconnect in law as a safeguard and a response to the new labour issues linked to the development and increasing use of ICT which has accelerated in the context of the pandemic?

With the appreciation that the work environment is constantly growing and evolving, stakeholders, world-over, recognizing the need to regulate the use and application of digital tools at work, have mooted the idea around the right to disconnect. This right aims to ensure employees are not overworked, ensure employees get rested enough, employees enjoy their right to a peaceful private life and also promote a sound balance between work and life. Alongside the protective measures, the right also presupposes a safeguard that seeks to ensure that an employee is not subjected to punishment or scorned by either their employer or supervisor, if they were to decline an email or call outside the set working hours.

Kenya’s proposed amendment to include the right to disconnect in the Employment Act, 2007

Currently, before the Senate Committee on Labour for discussion, the Employment (Amendment) Bill, 2022, sponsored by Nandi Senator Samson Cherargei, seeks to amend Section 27 of the Employment Act, 2007, and insert a clause 27A entrenching the right to disconnect for employees.

The promotor of the Bill, during a public participation forum organised by the Committee, asserted that the principal object of the Bill is to provide for the right to disconnect in the digital age. He averred that the Bill seeks to address increased employee burnout. Mr. Cherargei contends that digital connectivity has also been noted to be slowly eroding leisure time for employees hence affecting their work-life balance. Consequently, the Bill seeks to strike a balance between work and private life to allow digital technology to have a positive effect on workers’ quality of life supported by employers.

The Bill as currently structured proposes three cogent things to wit: –

(a)  Recognition of the right to disconnect;

(b)  Employers to develop a policy to govern this right; and,

(c)   Penalty for contravention of the bill.

It is writ large that the Bill as currently couched is descriptive and does not go into details regarding the ‘how’ of its implementation and leaves that to the employer-employee consensus building.

The French approach

France took up a similar approach in January 2017. The law would impose an obligation on organisations with more than 50 employees to negotiate with the employees on the dictates of a “Right to Disconnect” from work after working hours. The aim of the law was to protect workers against the problems associated with the increasing use of digital technology in the workplace.

The French approach outlines that companies with more than 50 employees are required by law to initiate and establish dialogue schemes or mechanisms between themselves and the employees, more so through their representatives. These dialogues need to focus on the use and application of digital tools beyond the set working hours. “Further to it, the “Right to Disconnect” must form part of the annual mandatory negotiation procedures, and remain focused on sustaining the quality of life at the workplace and ensuring gender equality, among other things.

It is also required that entities should create a mechanism for regulating the use of digital tools. In the event that a collective agreement between the entity and employee representatives, a charter governing good and proper conduct needs to be drawn by the employer. This latter needs to come clear on salient issues around the use of digital tools, such as stating the hours when employees are expected to be using digital tools. Ultimately, the entity needs to ensure that it takes appropriate measures to ensure ‘leave and rest periods’ are respected and that its work model appreciates the smooth integration between work and family life.

The French law is not clear on sanctions to be levied on the employer if and when the employer does not implement modalities around the “Right to Disconnect”. While this has resulted in what form the sanctions could take, there have been orders made by French courts in this regard. For instance, British company Rentokil Initial was ordered to pay 60,000 euros for failing to respect one of its employees’ “Right to Disconnect”. In this case, the court reiterated that the essence of the law on the “Right to Disconnect” puts a clear emphasis on the need by corporates to reinforce work-life integration policies within organizations.

As a further pointer, the French law on the “Right to Disconnect”  mirrors a quite flexible policy since every company is free to negotiate mechanisms of regulation, or to adapt the charter and procedures itself, depending on its needs. Likewise, it is important to note that the law does not provide any guidance on suitable ways of implementing proper measures for use of digital tools. Each organisation has therefore been left to create its own policies.

Conclusion and possible lessons for corporates

It is not in doubt that hard work and sometimes overworking remain the quintessential ideal for every human being. Similarly, the allure of upward social mobility, despite its elusive nature, is a holy grail for every individual. These two factors combined have seen human beings literally work themselves to death, in the spirited pursuit of their dreams. The possible perils that come with the unrelenting desire to work have caused stakeholders, world-over, to figure out possible ways to protect the greatest component of a workforce- the human resource.

Albeit overworking largely manifests in the traditional brick-and-mortar workplace, the advent and inclusion of technology in work settings have resulted in novel forms of overworking. Through smartphones, laptops and other salient forms of digital communication, employees have found themselves incapable of staying away from work when they should. While there are employees who place upon themselves these onerous work patterns, evidence in the real-world points to a sense of culpability by employees.

No company wants to be painted out there as that which does not take care of its human resource capital. The “Right to Disconnect” is a broad right whose design and implementation are not definite. As such, corporates, and this has been even recognized in law, have the ability to set up their own specific approaches to entrenching this right.

More fundamentally, the conversation around the right to disconnect will not cease as stakeholders grapple to find a way to retain the protective value of labour law, in the midst of digital transformation. It is important therefore that corporates begin exploring the salient features of their sectors and innovatively design ways that entrench the “Right to Disconnect” while also appreciating the unique sectoral demands.