With the rise of remote work and smartphones, the line between “work time” and “personal time” has become increasingly blurred. Employees are frustrated with the expected ‘always online’ culture that many workplaces have come to expect from them. But can employers legally expect employees to be available after hours and infringe on their personal time?
South African labour law does not expressly forbid employers from contacting employees outside of their normal working hours. However, several principles in the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA) provide important protection:
Working Hours Are Regulated
The BCEA sets maximum working hours (generally 45 hours per week, excluding overtime). Any work outside of agreed hours may be considered overtime, which must either be paid or agreed to in writing.
Right to Rest and Family Time
Employees are entitled to daily rest periods of 12 consecutive hours and weekly rest periods of 36 consecutive hours, including a Sunday, unless otherwise agreed. Regular after-hours contact may interfere with these rights.
Fair Labour Practices
The Constitution guarantees fair labour practices. If constant after-hours demands cause stress, fatigue, or impact family life, an employee may raise this as a grievance.
“Right to Disconnect” Debate
While South Africa has not yet formally legislated a “right to disconnect” (as some European countries have), there is growing recognition that excessive intrusion into private time could amount to unfair labour practice or even constructive dismissal in extreme cases.
What This Means in Practice
An employer may occasionally contact an employee after hours for emergencies or urgent operational needs. However, employees are not automatically obliged to perform ongoing work outside agreed hours unless their contract specifically provides for it. Persistent after-hours demands could entitle an employee to compensation (overtime pay) or relief under labour law.
In conclusion, employers should respect employees’ rest time, and employees are within their rights to push back against unreasonable after-hours intrusions. While the law is still developing in this area, best practice is clear: communication after hours should be limited, necessary, and compensated if it amounts to extra work.
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Est-Marie McCallaghan, Van Velden – Duffey Inc.
