In today’s modern workplace – driven by technology and the increasing prevalence of remote work – employees frequently find themselves entangled in work-related responsibilities outside of working hours.

• The evolving concept of the right to disconnect grants workers the freedom to disengage from work-related communications, such as emails or messages, outside of working hours.
• Within the dynamic landscape of South Africa’s labour market, employers need to acknowledge recent international developments regarding the right to disconnect.
• South African employers can take proactive steps to implement policies that delineate expectations regarding communication outside of working hours, including contact by third parties such as customers.

Within the dynamic landscape of South Africa’s labour market, employers ought to recognise recent international developments regarding the right to disconnect.

Defined by the European Industrial Relations Dictionary, the evolving concept of the right to disconnect grants workers the freedom to disengage from work-related communications, such as emails or messages, outside of working hours. Recognising and implementing this right can safeguard employees’ physical and mental well-being, ultimately fostering more productive and sustainable employment relationships.

International approach

The right to disconnect first emerged during a decision by the French Supreme Court on 2 October 2001 that affirmed that employees are not obligated to work from home outside of working hours. France further solidified this right in early 2013, with a national cross-sectional agreement on equality of life at work, encouraging businesses to avoid intruding on employees’ private lives by specifying periods when devices should be switched off, as regulated by Article L.2242-17 of the French Labour Code.

Following France’s lead, a wave of legislative action has swept through numerous countries. Belgium, Portugal, Chile, Italy, Spain, Luxembourg, Slovakia, the Philippines and Kenya, among others, have all taken steps to enact or implement measures aimed at safeguarding employees’ right to disconnect.

In Kenya, for instance, the Employment (Amendment) Bill of 2021 (Bill) proposes amendments to Kenya’s Employment Act, requiring employers to establish policies outlining the circumstances under which an employer may contact an employee outside of working hours, regulating the use of electronic devices for work-related communication, specifying conditions under which the right to disconnect may be waived, and defining the nature of compensation for employees who work outside of working hours.

Most recently, Australia’s Fair Work Legislative Amendment (Closing Loopholes No. 2) Bill of 2023 enshrined the right to disconnect in Australia’s law, which empowers employees to refuse to engage in work-related communications outside of working hours and provides avenues for dispute resolution through the Fair Work Commission.

What does this mean for South Africa?

While South Africa’s Basic Conditions of Employment Act 75 of 1997 (BCEA) and Labour Relations Act 66 of 1995 do not provide for the right to disconnect, it is evident that international trends and developments may soon necessitate its integration into South Africa’s legal framework.

In anticipation of this shift, South African employers can take proactive steps implement policies that delineate expectations regarding communication outside of working hours, including contact by third parties such as customers.

It is important to note that Section 9 of the BCEA does, however, stipulate that an employer may not require an employee to work more than 45 hours in any week: nine hours in any day if an employee works for five days in a week or eight hours in any day in an employee works more than five days in a week. This section, however, only applies to employees earning under the ministerial earnings threshold.

By clarifying conditions for contact outside of working hours and establishing mechanisms for compensation, employers can lay the groundwork for effectively integrating the right to disconnect into their organisational practices.

However, numerous challenges may arise concerning the application of the right to disconnect, for example, the challenge in affording the right to those employees who earn above the earnings threshold, and employees who do not work during ordinary work hours.

Clarification and adaptation of existing regulations will be essential to ensure the well-being of employees.

Conclusion

In conclusion, as South Africa navigates the complexities of the modern workplace, embracing the right to disconnect represents a crucial step towards promoting employee well-being, enhancing productivity, and fostering sustainable employment relationships in the digital age.

Written by Asma Cachalia, Director and Marco Neto, Candidate Attorney at Cliffe Dekker Hofmeyr