As South Africa navigates the complexities of the modern workplace, embracing the right to disconnect represents a crucial step toward promoting employee well-being, enhancing productivity, and fostering sustainable employment relationships in the digital age.
Current Legal Framework in South Africa
While South Africa’s Basic Conditions of Employment Act 75 of 1997 (BCEA) and Labour Relations Act 66 of 1995 do not currently provide for the right to disconnect, international trends suggest that such a right may soon be considered for inclusion in the country’s legal framework.
International Trends
The right to disconnect first gained attention in a landmark decision by the French Supreme Court on 2 October 2001, which affirmed that employees are not obligated to work from home outside of working hours. France further solidified this right in early 2013 through a national agreement on work-life balance, regulated by Article L.2242-17 of the French Labour Code, which encouraged businesses to avoid intruding on employees’ private lives by specifying periods when devices should be switched off.
Following France’s lead, several countries—including Belgium, Portugal, Chile, Italy, Spain, Luxembourg, Slovakia, the Philippines, and Kenya—have enacted or are in the process of implementing measures to safeguard employees’ right to disconnect. For instance, Kenya’s Employment (Amendment) Bill of 2021 proposes amendments to the Employment Act that would regulate work-related communication outside of working hours and outline compensation for employees who work beyond standard hours.
Most recently, Australia’s Fair Work Legislative Amendment (Closing Loopholes No. 2) Bill of 2023 enshrined the right to disconnect in law, empowering employees to refuse work-related communications outside of working hours and providing avenues for dispute resolution through the Fair Work Commission.
Implications for South African Employers
South African employers can proactively implement policies that set clear expectations regarding communication outside of working hours, including contact by third parties such as customers.
Section 9 of the BCEA stipulates that employers may not require employees to work more than 45 hours in a week—nine hours per day for a five-day workweek or eight hours per day for a longer workweek. However, this section only applies to employees earning below the ministerial earnings threshold, leaving higher earners and employees with non-standard hours in a grey area.
Clarification and adaptation of existing regulations will be essential to ensuring the well-being of all employees, particularly in an increasingly digital and connected world.
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