What the law says about after-work emails in South Africa

Other countries may be placing legislative barriers on after-work emails in South Africa, but this is not the case in South Africa – for now.

Generally, office hours in South Africa are between 9 a.m. and 5 p.m., but many employees receive emails after these hours or on the weekend.

According to a study from Lehigh University in Pennsylvania, USA, it’s not the amount of time spent on work emails that drive exhaustion but anticipatory stress – a state of anxiety due to perceived threats.

Employees are thus unable to detect and feel exhausted no matter how much time is spent on after-hours emails.

However, South Africa’s Basic Conditions of Employment Act 75 of 1997 (BCEA) and Labour Relations Act 66 of 1995 do not allow for the right to disconnect.

The BCEA does, however, give some benefits to those earning less than the R21,198 per month threshold:

• Ordinary hours of work;

• Overtime;

• Compressed working weeks;

• Averaging of hours of work;

• Meal intervals;

• Daily and weekly rest periods;

• Sunday pay;

• Pay for night work and

• Pay for work on public holidays.

That said, international trends and developments may soon be necessary for the integration of after-work email limits into South Africa’s legal framework.

International approach

Asma Cachalia and Marco Neto from Cliffe Dekker Hofmeyr said that the right to disconnect first emerged following a French Supreme Court ruling in October, which said that employees are not obligated to work from home outside of working hours.

This was further solidified in France in early 2023 with a national cross-sectional agreement of life at work, encouraging businesses to avoid intruding on employees’ private lives by specifying periods when devices should be switched off.

Several other countries, including Portugal, Chile, Italy, Spain, Luxembourg, Slovakia, the Philippines and Kenya, have all taken steps aimed at safeguarding employees’ right to disconnect.

Australia’s Fair Work Legislative Amendment (Closing Loopholes No. 2) Bill of 2023 also enriched the right to disconnect as per Australian law.

This allows employees to refuse to engage in work-related communications outside of working hours and creates avenues for dispute resolution via the Fair Work Commission.

Looking ahead

“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,” said Cachalia and Neto.

That said, Section 9 of the BCEA does stipulate that an employer may not require an employee who earns under the R21,198 per month threshold to work over 45 hours in a week (nine hours on any day if an employee works for five days in a week or eight hours on any day in an employee works more than five days in a week.)

“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,” said the experts.

“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.”

“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.”

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