Do South Africans have to answer work calls and emails after hours?

 ·20 Apr 2019

South African employees looking to disconnect this long weekend may find that they are obligated to respond to work emails.

According to Lauren Salt, an executive in ENSafrica’s employment department, South Africa has not yet expressly adopted a ‘right to disconnect’ but does have some laws in place.

The Basic Conditions of Employment Act (BCEA) – which regulates working hours and overtime – provides certain protections for vulnerable workers, she said.

“The BCEA provides that an employer may not require an employee earning below the minimum earnings threshold of R205,433.30 (approximately R17,000 per month) to work overtime, except in accordance with an agreement to do so (and for additional remuneration paid at an increased rate of 1.5 times the employee’s ordinary rate of pay).

“Neither the preclusion from working overtime nor the increased rate of pay, however, is applicable to employees earning in excess of the threshold.”

The reason for this is that employees earning above the threshold are not viewed as ‘vulnerable employees’ and are recognised as having sufficient bargaining power to negotiate more vigorously with their employers (therefore being less susceptible to being taken advantage of by their employer), said Salt.

“How this plays out in practice in large corporates and multinationals, particularly in respect of employees earning in excess of the threshold, is the inclusion of a clause in employment agreements which requires employees to work in excess of their contracted ordinary working hours for no additional remuneration.”

Going forward

The difficulty with the right to disconnect is the increasingly globalised nature of many jobs and businesses, said Salt.

“Technology has irrefutably allowed for increased connectivity across time zones, inherently making many businesses more efficient.

“A simple blanket ban on communication outside of ordinary working hours is not a practical solution, specifically not in South Africa which is seeking to compete with developed countries.”

Instead South African employers should be more mindful that if the nature of a job requires availability after hours, such expectations should be stated formally as a part of an employee’s job responsibilities, said Salt.

“In practice, large employers do seem to address whether employees would be required to work or be available after hours, even in the absence of a statutory obligation to do so.

“However, employers generally may, in future, start to see pushback during the negotiation of employment agreements, especially with millennials and Gen Zs entering the job market.”

The issue may also become a topic for collective bargaining, she said.

This pushback may, at some stage, necessitate the inclusion of a provision in the BCEA which deals with the right to disconnect or the obligation on employers to negotiate terms governing the use of electronic devices and other digital communications during non-working hours.

“However, the legislative disconnect between South Africa and developed countries is likely to remain for at least the near future,” Salt said.

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