Is the emancipation of employees a myth?

In its coalition agreement, the current government has committed to modernising labour law; this modernisation should allow for greater flexibility – one that is chosen, regulated and mutually beneficial – serving the interests of both employees and businesses.

The central question is therefore simple: how can we respond, within the current legal framework, amongst other things, to the specific requests of employees seeking a better work-life balance, when these requests are feasible for the business but pose legal risks?

Four recurring situations illustrate the gap between current needs and the inflexibility of the Labour Code.

First example: an employee wishes to spread their working hours over four 10-hour days, rather than five 8-hour days. The request is clear and aims to improve work-life balance, but the legal framework generally limits the daily working time to 9 hours when work is spread over five days or fewer. The employer is therefore faced with an inconsistent choice: either refuse the arrangement requested by the employee or risk the tenth hour being treated as overtime.

Second example: an employee in a role suitable for remote working wishes to start their day at home to avoid rush-hour traffic, before travelling to the company’s premises. The solution seems pragmatic, but the journey time following a period of remote working is treated as a break, whilst the Labour Code only permits one unpaid break per day. Here again, the employer may be forced to refuse an arrangement that is, in fact, sensible for both the employee and the company.

Third example: a part-time employee, for personal or family reasons, wishes to group their time off together during certain periods of the year. The request is aimed at a working arrangement better suited to their circumstances, but the rules resulting from the 2016 reform severely restrict the scope for flexibility regarding reference periods and may result in additional leave or the payment of overtime. The current framework thus turns a desired solution into a costly constraint.

Fourth example: an employee wishes, for personal or family reasons, to spread their two weekly rest days over the week – for example, on a Sunday and a Wednesday – rather than taking them consecutively. This arrangement may better meet the employee’s needs, but it risks preventing the employer from formally complying with the requirement for an uninterrupted 44-hour weekly rest period and may result in additional compensation payments. A reasonable individual request therefore becomes legally difficult to accept.

These situations have one thing in common: the employer is not prevented by the organisation of work, but by a legal framework that turns their goodwill into a legal and financial risk. Under current legislation, they may be forced to issue a flat refusal to requests even though these have been made by the employees themselves.

The issue is therefore not to remove protection for employees, but to assess whether certain rules, designed in a different social and economic context, still reflect today’s realities. Family commitments, expectations regarding autonomy, the rise of remote working and difficulties with mobility all necessitate bringing labour law more into line with the reality experienced by employees and businesses.

The legislator must, of course, maintain safeguards and ensure that employees’ choices are free, informed and compatible with the organisation of the business. However, the announced modernisation must enable employers to accept, within a clear and secure framework, feasible requests from empowered employees. Modern labour law must not pit protection against responsible flexibility; it must allow for their integration for the benefit of both parties.

The necessary modernisation of labour law cannot, however, be limited to merely responding to employees’ requests. It must also incorporate common-sense adjustments, dictated by the constraints faced by businesses and by the profound changes taking place in the world of work.