French Employment Law Reform – Our answers to your questions on teleworking

March 2018

By Stéphane Flichy and Manon Pous


Télétravail



 

Teleworking was subject to clarification and simplification by the Macron Ordinance n°2017-1387 of 22 September 2017. (Articles L.1222-9 to L.1222-11 of the French Employment Code).

 

Without going into details about this reform, we take the opportunity to answer to your 10 most commonly asked questions on teleworking.

 

1.        What is teleworking?


First, teleworking is a form of work organization allowing to carry out a work, which could have been performed in-house, outside the company’s premises, by using information and communication technologies.

 

This work organization can only be set up with the mutual consent of the employer and the employee.

 

From now on, teleworking can be regular or casual.

 

2.       Who is the teleworker, a homeworker?

 

Unless otherwise agreed by collective bargaining agreement and contrary to homeworkers, the teleworker has no obligation to perform his work at home.

 

It must be noted that the notion of homeworker refers to a special status defined by the French Employment Code. In some cases, but not always, the teleworker will be qualified as a homeworker.

 

3.       Which companies can implement teleworking?

 

All of them can, provided that it is made possible by their field of activity.

 

4.       How to set up teleworking?

 

Formalizing the agreement reached by the employer and the employee through an addendum to the employment contract is no longer required.


According to the French Employment Code, teleworking can be implemented by:

 

                 v  Collective implementation of teleworking via a collective bargaining agreement.

 

We draw your attention on the fact that, once the agreement is signed, any application fulfilling its provisions shall be granted by the employer, except compelling reasons to refuse it.


OR: In the absence of a collective bargaining agreement, a teleworking charter can be set up after consulting the Social and Economic Council (le “Comité Economique et Social”), where it exists.

 

                v  Implementation of teleworking with a given employee via an individual agreement, by any means (i.e. emails at least, as oral agreements do not provide enough security). In practice, parties will agree on conditions by signing a teleworking agreement.

 

5.       As an employer, how can I refuse to an employee to telework?

 

I can always refuse to an employee to telework but it sometimes has to be justified:

 

                     v  Once a collective bargaining agreement – or a charter defining which positions are compatible with teleworking – is settled, the employer is not allowed to refuse to an employee occupying such positions to telework, without justifying it.

 

                v  In the absence of collective agreement or charter, if I have already accepted teleworking requests for employees performing identical functions, my refusal will also have to be justified. Otherwise, such refusal could be considered as a violation of the principle of equal treatment or as a discrimination.

 

6.       As an employer, can I set conditions on teleworking?

 

In the interest of sound management, I am allowed to set conditions on teleworking or to even exclude it. Therefore, I can:

 

                    §  Require a minimum seniority;

 

                    §  Limit the number of teleworkers per department;

 

                    §  Exclude employees with functions requiring them to work on the company’s premises only, or having access to confidential or sensitive data.

 

7.        As an employer, can I make teleworking compulsory?

 

Teleworking has to be accepted. The employee refusal to telework does not have to be justified.

 

However, under exceptional circumstances of “force majeure”, I can require from employees to telework (e.g.  in case of an epidemic situation).

 

8.       As an employer, what do I have to mention in the individual or collective document setting up the teleworking?

 

The document must at least precise:

 

                    §  The conditions of the shift to telework and of the return to a normal functioning of work;

 

                    §  The ways for an employee to accept the conditions set to telework;

 

                    §  The means used to control the working time and the workload;

 

                    §  The setup of timeframes during which the teleworker can be contacted.


9.       As an employer, what are my rights and obligations towards (a) teleworker(s)?

 

As teleworkers and employees performing on premises are in a same situation, I am entitled to expect the same work, within the same deadlines.

 

Specific obligations are added to common ones (particularly as regards health and security matters), namely:

 

                    §  To inform the teleworker on any restriction to the use of the tools dedicated to teleworking and on sanctions in case of non-compliance (the obligation to disconnect, the prohibition to use digital tools for personal purposes…);

 

                    §  To give priority to an employee’s request to occupy non teleworking functions or to get back his previous functions;

 

                    §  To arrange yearly a meeting on the working conditions and the workload with the teleworker;

 

                    §  To bear the cost resulting from the teleworking, depending on circumstances.

 

10.    As an employee, what are my rights and obligations, compared to those granted to an employee working on premises?

 

As a teleworker, I will be granted with “the same rights than an employee working on the company’s premises”, without exception. (Article L. 1222-9 of the French Employment Code).

 

Despite the remoteness, I remain under the hierarchical subordination of my employer and I am required to respect the company’s applicable regulations (and in particular the IT Charter).

 

Lastly, any accident occurred at the workplace while exercising work functions will be assumed to be a work accident.

 

CONCLUSION:

 

Since technologies now allow employees to work remotely, it is fortunate than the Macron Ordinance n°2017-1387 of 22 September 2017 simplifies the use of teleworking.

 

Nevertheless, as the collective bargaining agreement / the charter or the individual document will set out the teleworking conditions, the implementation of the latter has to be anticipated.

 

In order to prevent any claims raising from teleworking during or at the end of it, it is strongly recommended to regulate its use.  

 

Such anticipation will be valued where teleworking has to be implemented as a response to compelling and sudden circumstances. In other words, to foresee the conditions of teleworking is a way for the employer to obtain a better flexibility in its employees’ work organization.

 

 

 









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