This country has banned work messages after hours – here’s what South Africa’s laws say

If your workday in Portugal is done, your managers aren’t allowed to email or call you. Except for emergencies.

This month, lawmakers approved measures to support employees’ right to disconnect from work as more people perform their jobs remotely. Bloomberg reported that the ruling Socialist Party approved the rules with the backing of other groups in parliament.

“The employer has the duty of abstaining from contacting the worker during his rest period, except in situations of force majeure,” according to the text of the rules.

In related measures, home-working expenses won’t be taxed as income, while employees with young children have the right to work remotely if it is compatible with their roles.

Working from home was mandatory in Portugal until the end of July, when a surge in coronavirus infections slowed after the country’s vaccination program accelerated.

What does the law say in South Africa? 

While many South African employees continue to work from home, workers are not guaranteed the same ‘right to disconnect’ under current regulations, said Gillian Lumb and Taryn York, employment law experts at Cliffe Dekker Hofmeyr.

However, the firm said that the Basic Conditions of Employment Act (BCEA) makes provision for restrictions on maximum ordinary working hours and daily and weekly rest periods.

“More specifically, it provides that an employer may not require or permit an employee to work more than 45 hours a week, nine hours a day if the employee works five days or less a week; or eight hours a day if the employee works more than five days a week.

“In addition, it requires that employers allow their employees to have a daily rest period of at least 12 consecutive hours between ending and recommencing work, and a weekly resting period of at least 36 consecutive hours, which must include Sunday, unless otherwise agreed.”

However, Cliffe Dekker Hofmeyr said that these protections are not applicable:

• Where employees are required to do urgent work owing to circumstances for which the employer could not reasonably have been expected to make provision for and which cannot be performed during ordinary working hours;

• If the employee is a senior managerial employee;

• If the employee earns above the annual earnings threshold set by the Minister of Employment and Labour from time to time which is at present the amount of R211,596.30.

“No matter an employee’s seniority or earnings, in terms of the BCEA every employer must regulate the working hours of an employee in accordance with the provisions of any Act governing health and safety, with due regard to employees’ health and safety, with due regard to the Code of Good Practice on the Regulation of Working Time and with due regard to employees’ family responsibilities.”

Can South African employees include ‘right to disconnect’ clauses in their employment contracts, such as ‘no after-work emails’?

“In principle, yes. Prior to commencing employment, an employee can endeavour to negotiate more favourable terms and conditions, which the employer may or may not accept.

“It is, however, unlikely that an employer will agree to a complete ban on ‘after work emails’ or working after ordinary working hours, as this may be required depending on the nature of the employee’s position and the employer’s operational needs,” Cliffe Dekker Hofmeyr said.

Has the Covid-19 pandemic and remote-working changed anything in South Africa? 

As many businesses were forced to implement remote working in response to the Covid-19 pandemic, the divide between ordinary office/working hours and after-hours has been somewhat blurred, Cliffe Dekker Hofmeyr said.

The firm noted that advances in technology essentially allow for access to employees at all times, both during and outside of regular working hours.

“To safeguard the well-being of employees, care should be taken to afford employees a measure of work-life balance whilst still fulfilling an employers’ operational needs.

“This can be achieved by employers clearly defining what is expected of their employees, and in particular employees who earn above the annual earnings threshold and senior managerial employees.”

While South Africa does not have specific legislation in place dealing with the ‘right to disconnect’, employees are afforded protections in terms of the BCEA and related Code of Good Practice, the Occupational Health and Safety Act, and Labour Relations Act, it said.

• With additional reporting by Bloomberg.

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