Can your boss fire to you if you do not answer his calls or messages outside of your working hours?

The border between professional and private life is sometimes tenuous, especially in the digital age where smartphones make us permanently reachable. A recent decision of the Court of Cassation clarified this delimitation, ruling on the case of a sanctioned truck driver for not having answered his employer during his rest time.

The highest French jurisdiction has decided: An employee cannot be penalized if he does not respond to his employer outside his working hours. This decision, which makes jurisprudence, could redefine relations between employers and employees in many sectors of activity.

The case that made a case law

At the origin of this judgment, a fairly banal story. A heavyweight driver was dismissed for serious misconduct by his boss. Among the grievances chosen against him were insults towards his hierarchical superior on Facebook as well as the publication of photos taken behind the wheel on a snowy road. On these two points, his dismissal was validated by the courts.

But the employer also had Sanctioned this driver three times for not responding to the phone when his superiors tried to communicate his schedule for him. However, these calls intervened during his weekly leave, while he was at rest.

The Nîmes Court of Appeal had initially proved the company right, considering that the employee had always folded this practice before the deterioration of their relations. She also considered that joining a driver during her weekly leave, the day before his recovery, constituted a common practice in the transport sector and was not prohibited by the collective agreement.

But the Court of Cassation reversed this decision, By explaining that an employee who could not be joined outside his working hours on his personal phone does not commit any fault and cannot be punished. This position applies indifferently to weekly or daily rest.

Implications for employers and employees

This decision of the Court of Cassation has important repercussions for the world of work. Audrey Tomaszewski, lawyer at the Eversheds-Sutherland office, stresses that “Transmitting a schedule outside working hours, the day before for the next day, is a common practice in certain sectors. With this judgment, the companies concerned will be encouraged to better anticipate and to organize themselves ”.

Indeed, many sectors of activity (especially those operating with variable schedules such as hotel and restaurant, health or transport) will have to rethink their communication methods with their employees. Employers will no longer be able to count on the availability of their employees outside working hours, except specific contractual provision.

Déborah Fallik, by Redlink Avocats, Precise to France Info That if this practice is common and regular in a sector, the employer could integrate it into an internal agreement, but only in exchange for a counterpart. It recalls a fundamental principle: in labor law, only the penalty regime obliges the employee to remain reachable by his employer, with in return compensation and/or compensatory rest.

This decision echoes the right to disconnection, devoted by the 2016 labor law. This right aims to ensure respect for rest and leave times as well as the balance between professional and personal life. With this decision, the case law of the Court of Cassation therefore reinforces this principle by clearly establishing that an employee cannot be required to remain permanently available.

This case law could Encourage the development of business agreements on the right to disconnection who would specify the contact methods outside working hours and any counterparts.

• The Court of Cassation has established that an employee cannot be penalized if he does not respond to his employer outside of his working hours.
• This decision obliges the sectors accustomed to contact their employees during their rest time to review their organizational practices.
• Only the penalty regime, with financial compensation or rest, can legally force an employee to remain reachable outside of his working time.