The blurring of the boundaries between professional and personal life can be effectively described by the acronym of ATAWAD (also a registered trademark by Xavier Dalloz since 2002) referring to a connection possible from AnyTime, AnyWhere, AnyDevice.917 In accordance with the three aspects included in this expression, the blurring of boundaries will be presented through these three interconnected aspects, which were all shaken by technological advances: place of work, working hours and equipment used for work.
However, as a preliminary point it must be emphasized that this phenomenon is mainly relevant for employees performing office work, and especially knowledge work.918
payment.” https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/platform-work (Accessed: 13 August 2019)
911 They are “digital laborers who perform micro tasks via the platforms with the unique, main or secondary aim to receive an income or additional income.” Julien – Mazuyer 2018. pp. 195–196.
912 “[Crowdworking] refers to a form of work done by a “crowd” via a digital intermediary based on the outsourcing of activities, with piece rate payments. It is about calling a multitude of persons to do a task, the crowdworkers offering their labour force.” Julien – Mazuyer 2018. p. 190.
913 Julien – Mazuyer 2018. p. 191.
914 For example, in the case of platform work, at first sight it is the client who gives orders, evaluates and controls the service, fixes the price, etc. while the platform “only” ensures a place to make the deal between the parties.
The worker is free to accept or decline work. However, Mathilde Julien and Emmanuelle Mazuyer argue that these are just appearances and further analysis of the real conditions of the execution of the relationship is needed in order to apprehend the true role of platforms. Source: Julien – Mazuyer 2018. p. 191.
915 Cass. soc., 17 avril 1991, 88-40.121; Cass. soc., 19 décembre 2000, 98-40.572; BH2005. 102; 7001/2005.
(MK 170.) FMM-PM együttes irányelv
916 Although analysing whether these new forms of work qualify as employment or not raises several interesting questions, its analysis would be beyond the scope of the monograph, as the main subject is how (prospective) employees’ right to privacy and to data protection can be protected on SNSs, and not on who is considered to be an employee.
On the boundaries of employment and on who is considered to be an employee see more in: Desbarats, Isabelle: Quel statut social pour les travailleurs des plateformes numériques ? La RSE en renfort de la loi.
Droit social, (11), 2017. pp. 971–983.; Fabre, Alexandre – Escande-Varniol, Marie-Cécile: Le droit du travail peut-il répondre aux défis de l’ubérisation ? Revue droit du travail Dalloz, (3), 2017. pp. 166–174.;
Kun 2018
917 https://www.definitions-marketing.com/definition/atawad/ (Accessed: 15 May 2018); http://www.e-marketing.
fr/Definitions-Glossaire/ATAWAD-240581.htm (Accessed: 11 May 2018); Griguer – Schwartz 2017. p. 51.
918 Eurofound – International Labour Office 2017. p. 3. The report acknowledges that certain kinds of occupations require the physical presence at the workplace or simply do not involve the use of ICT. Source: Ibid. pp.
17–18.
§1. “Any time”: working hours
To put it simply, earlier, working time was easy to determine by the place of the employee:
when the employee was in the workplace, he/she had to work, but when he/she was at home (or outside the workplace) he/she was not working. However, technological developments have shaken up the world of work in this regard, too. Personal life flows into professional life, as employees do not spend their working time exclusively working. The personal use of the employer’s (or their own) equipment at the expense of working time is a growing issue: it is a growing phenomenon that employees often surf the Internet or are connected to their SNS at work, at the expense of working hours.919
On the other hand, professional life also flows into the personal life of the employee, as in the hectic 21st century it is often an expectation towards employees to instantly answer a work e-mail, phone call, instant message – even after working hours. Today it is not uncommon that work is not finished when working hours are over: work e-mails, calls, messages can be received and sent literally any time.920 This 24 hour connectivity poses challenges not only to the separation of work and personal life, but also to the health of employees,921 as it can lead to permanent stress by putting the expectation on employees to be available and react rapidly, at any time.922 With the advent of the “Homo connectus” and the widespread use of technology, the rethinking of work-life balance must be considered.923, 924 Although the question of the boundaries of work and personal life was already addressed by courts,925 the development and widespread use of ICT raises this question with new intensity. France addressed this challenge by introducing926 to its legislation the right to
919 The time spent on social media during working hours can represent a considerable amount of time. According to a report prepared by Bambu by Sprout Social (US), 18 % of the surveyed spend less than 15 minutes per day on these sites, however, 20 % spend more than an hour on these sites (and 10 % amongst them spend more than 2 hours.) According to a study prepared by Olfeo, French employees surf the Internet for private purposes for 2 hours 10 minutes daily, and connecting to Facebook is one of the most popular activity.
According to the results of the PAW (Privacy in the workplace) project in 2012, 39 % of the Hungarian employees participating in the survey check social networks at the workplace. Sources: https://getbambu.
com/blog/data/downtime-to-work-marketing-report/ (Accessed: 20 January 2019); https://www.euromedia.fr/
public/2016/12/etude-olfeo-2016-realite-utilisation-web-au-bureau.pdf (Accessed: 20 January 2019); Szőke 2012. p. 173.
920 Ray – Bouchet 2010. p. 45.
921 INFOREG 2017. p. 71.
922 Mettling 2015. p. 35.
923 Moreira 2016. pp. 6–7.
924 However, ICT can have beneficial effects as well, as these activities might equilibrate themselves through transitioning into an implicit give-and-take: it is true that today an employee might spend a part of his/her working time buying, for example, a train ticket for the weekend, but the same employee might respond to urgent work messages on a Saturday morning. Source: Combrexelle 2010. p. 12.
925 The Court of Cassation stated in 2001 that “the employee is obliged neither to accept to work from home, nor to install there folders and work equipment”. In 2004 the Court of Cassation confirmed this principle by stating that “the fact that the employee could not be reached on his personal phone outside working hours is devoid of wrongfulness” therefore could not constitute a legitimate reason for disciplinary dismissal. (Cass.
soc., 2 octobre 2001, 99-42.727 and Cass. soc., 17 février 2004, 01-45.889)
926 However, Clément Cailleteau further nuanced this statement through referring to already existing appearances of this right, such as the right to rest, and was also the subject of certain initiatives of social partners. Source:
Cailleteau 2018. p. 2. (Page number referring to the online version of the article downloaded from: http://
www.lexbase-academie.fr.)
disconnect (“le droit à la déconnexion”),927 which means “the employees’ right to not to be connected to a professional digital tool during periods of rest and leaves”.928
According to the FLC, the annual negotiation on professional equality between men and women and on quality of worklife has to address the terms of exercising the employees’
right to disconnect and the measures that employers adopt regarding the use of digital tools in order to ensure the respect of working time and periods of rest and leaves and the respect of personal and family life. In the lack of an agreement, the employer shall adopt a charter addressing the question of the right to disconnect.929 However, when it comes to implementation, the regulation is deficient: although the employer faces sanctions if he/she does not negotiate on this question as prescribed by the law, there is no sanction if these negotiations do not finish with the adoption of a charter.930 Still, protection can arise from the employer’s obligation regarding the health of employees – connected to the overwork and stress caused.931
The realisation of this right might take several forms, starting from the blocking of professional messaging services, through pop-up windows, to sending the messages with delay. The Mettling report in 2015932 drew attention to the fact that the right to disconnect is not only a right but also an obligation, and emphasised the co-responsibility of employers and employees in this regard.933 However, it shall not be forgotten that although the right to disconnect aims to ensure the respect of working hours, it also contributes to more flexibility and certain employees choose it on purpose to work outside working hours.934
§2. “Anywhere”: place of work
Traditionally, the place of work and time of work were mutually connected: while the place of work implied working hours, non-working hours were automatically associated with outside of the physical workplace.935 Especially the latter is questioned by the development of ICT and through the increase of certain atypical forms of employment, such as homework or
927 This right was inserted into the Labour Code by the Act No. 2016-1088 of 8 August 2016 on labour, the modernization of social dialogue and securing professional pathways (loi n° 2016-1088 du 8 août 2016 relative au travail, à la modernisation du dialogue social et à la sécurisation des parcours professionnels). In entered into force on the 1st January 2017.
928 Definition provided by Jean-Emmanuel Ray cited in: Griguer 2017. p. 5.
929 Subparagraph 7 of Article L2242-17 of the FLC
930 Bourgeois – Touranchet – Alas-Luquetas 2017. p. 17.; Griguer – Schwartz 2017. p. 52.
931 Bourgeois – Touranchet – Alas-Luquetas 2017. p. 17.
932 The Mettling report addressed the question of the impacts of digital technology on the world of work and recognized that the digital revolution caused a change of paradigm in the world of work, affecting a wide range of its fields. (p. 5.) The report (1) identified the main impacts of digital technology and (2) the consequences that can be drawn from them and (3) proposed solutions to these new challenges. Amongst others, the report proposed the acknowledgment of the right and obligation of disconnect, but also addressed the questions of management, new forms of performing work, etc. For a summary of the report see: Reymann, Alexandre:
Transformation numérique et vie au travail. Les cahiers du DRH, (225), 2015. pp. 61–65. and Pontif, Valérie:
“Transformation numérique et vie au travail” : les pistes du rapport Mettling. Revue droit du travail Dalloz, (3), 2016. pp. 185–187.
933 Mettling 2015. pp. 20–21.
934 For example, it is the case when an employee deliberately chooses to work on a Sunday night in order to be able to have a calmer Monday morning at work. Loiseau 2017. p. 464.
935 Morgenroth 2016. p. 29.
telework. These atypical forms of employment are more affected as they have (completely) demolished the physical separation of work and personal life. Personal life also flows into professional life, as the use of SNSs is – from a technical point of view – not limited to outside of the workplace. As their use is not dependent on the exact geographical position of the employee (but on an Internet connection and a device), they can be accessed from anywhere, even from the workplace.
The traditional methods of employee monitoring were only capable of “keeping an eye on” employees while they were at the workplace, during working hours, whereas now, due to technological innovations, monitoring is not limited anymore to the physical workplace, it is now possible to watch employees’ every step not only within the workplace, but to
“follow them home” and monitor their activities outside the workplace.936 It is enough to think of the portable devices that the employee takes outside the workplace (work computers, work cell phones, GPS systems) or of the use of SNSs, during which the employee provides insight into his/her personal life, conducted beyond the boundaries of the workplace.
§3. “Any device”: equipment used for work
Before, most of the necessary work equipment was in the factory/office/etc. and no or very few employees possessed at home the equipment necessary for work. Today, a change can be observed regarding the use and spread of these technologies: for the first time since the industrial revolution, ICT impacts the personal lives of employees as individuals, just as much as their professional lives as employees. Moreover, employees often start to use these tools in the course of their personal lives, before entering the professional sphere.937 Employees can bring their devices used for personal purposes (e.g. smartphone) or they can bring their devices to the workplace for the purpose of working, instead of the employer providing equipment. An example of the latter is the bring your own device (hereinafter referred to as: BYOD) phenomenon.938 Professional devices also enter the personal sphere of the employee: employees often take home with them the devices provided by the employer (e.g. company phone, company laptop). Also, outside the workplace employees might use their personal devices for professional purposes (e.g. sending an e-mail, receiving a phone call).
Such uses might result in a complete blurring of professional and private use: employees might use their own devices for work purposes, while those possessing a company owned equipment potentially use it for private purposes (e.g. checking Facebook from the company’s computer). It raises data protection questions of separating personal and professional use of the device when the employer intends to exercise his/her right to monitor. One of the most important questions arising in relation to privacy and data protection is whether/how the employer can access and control these personal devices that are also used for work or control the use of equipment provided by him/her while respecting employees’ right to privacy and data protection?
936 Bibby 2016. p. 2.
937 Mettling 2015. p. 5.
938 On the data protection requirement during the implementation of BYOD practices see more in: WP29: Opinion 2/2017. pp. 16–17.
To conclude, the proliferation of ICT has fundamentally altered the way individuals live their lives – including their professional lives as well. Amongst the different advantages and disadvantages in relation to ICT and the world of work, Chapter 1 focused on how ICT has contributed to the blurred boundaries of work and private life, how it challenges and blurs the previously established boundaries through breaking down physical, temporal and material separation of work and personal life – as the analysis of ATAWAD illustrated.
Such a phenomenon raises important questions in relation to the monitoring or the control of employees’ work, to defining working hours, to the health of employees, etc. However, besides the difficulties in separating professional and personal life, ICT can provide possibilities and facilitate performing working as well. For example, they provide more freedom to the employee and can allow performing work in a way which is more convenient to him/her: the employee can work from home, sparing hours of public transportation, or can choose his/her working hours in accordance with his/her most productive period.
Employees in difficult situation (e.g. individuals with disability) might also benefit from these innovations.
As regards ICT use for work, the dichotomy between France and Hungary is not considered to be significant for the subject of the research, as its proliferation is present in both countries. Naturally, differences in the exact appearance and use of ICT might occur between these two countries, but the phenomenon in itself is present in both of them – and for the main subject the latter has particular importance, as the possible differences in their use do not change the basic characteristic of ICT in relation to blurring the boundaries of work and personal life.
Through stating that due to ICT the boundaries of professional and personal life have become increasingly blurred, the analysis in Chapter 1 set the general context necessary for the further examination of SNSs. As SNSs belong to ICT as well, the statements of Chapter 1 are adequately applicable to them as well – however, their specificities must be addressed in detail in Chapter 2.
Chapter 2: The rise of social network sites and its effects on employment