Back to work after telework, some practical issues

“We are at war. [...] All companies must organize themselves to facilitate remote working”.

With this statement of President Macron on 16 March 2020, telework entered into a new era in France. From this date, all employers in France had to implement telework “wherever possible”.

The occupational health protocol has subsequently evolved several times, and the number of mandatory telework days varied as the incidence rate of Covid-19 fluctuates, and is currently set at three mandatory telework days.

Now that the government has announced that 2 February 2022 will mark the end of mandatory telework days, employers will again face the difficulties of returning to face-to-face work.

Indeed, some employees, having had a hard time living in big cities, have taken advantage of these periods of total or partial telework to leave their usual urban residence and take refuge in the countryside.

The movement is particularly visible in the Paris region, where salaries and housing costs are higher than elsewhere, and where the richness of the public transport offer makes it possible to move away, in distance, from Paris, while keeping a reasonable travel time.

What a surprise it was for employers when they asked employees to return to work and the latter informed them that this would not be possible, having moved several hundred kilometers away.

The difficulties encountered can be divided into two broad categories: an operational difficulty and an economic difficulty.

From an operational point of view, some employees were simply no longer able to return to work when it was requested to work from office, fully or partly, or requested to gather the telework days, in order to limit their travel.

From an economic point of view, employees asked to be reimbursed for part of their TGV season ticket costs, which can represent a significant financial burden, and at least much more than the traditional public transport season tickets provided by the cities.

Many employers have taken offence at this situation, citing a “breach of trust” or a “change in the economy of the contract”.

There are still ways for employers to deal with these situations, taking into account the legal principles in force.

The legal framework

Firstly, the employer cannot forbid the employee to move, even if the employee goes to the other side of France.

The employee is perfectly free to choose his or her place of residence (with the exception of a few very specific situations) and the employer has no means of constraining this choice. The only constraint that the employer can impose is to oblige the employee to telework in France, because of the social and fiscal consequences that teleworking abroad would entail. The employee must also inform the employer of any change of residence.

In addition, the Labour Code requires the employer to reimburse 50% of the “subscriptions” taken out by employees to get to work.

Case law and the BOSS (Bulletin Officiel de la Sécurité Sociale) have specified that the employer is obliged to reimburse employees for these subscriptions, regardless of the distance between the place of work and the place of residence or the cost of these subscriptions.

Thus, employees who have moved are entitled to request reimbursement of half of their SNCF season ticket, in addition to their city public transport season ticket. The SNCF has also taken a stand on the subject, offering annual “telework” season tickets allowing 250 return journeys per year (i.e. 2 to 3 return journeys per week) or 450 return journeys per year (4 to 5 return journeys per week) at a rate 40% lower than the traditional annual pass.

In this context the question arises whether an employee can demand to telework.

As a matter of principle, except in “exceptional circumstances, in particular the threat of a pandemic”, the introduction of telework requires the agreement of both parties, i.e. the employer cannot impose it to the employees, but the employees do not, as a matter of principle, have a right to telework.

Telework can be set up in an extremely simple way, ranging from a simple individual agreement, formalized by any means (a simple email may be enough), to a collective implementation by collective agreement or charter issued unilaterally by the employer.

However, when telework is formalized in a collective way (agreement or charter), the refusal by the employer to the request of an employee working on a teleworkable job must be motivated (being specified that the employee's place of residence does not constitute a valid reason for refusal).

Having recalled these legal principles, let us examine the means offered to employers to reconcile the impact of telework on their activity as well as possible.

Good practices

If, as we have seen, the employer cannot force his employees to live near their place of work, the organization of work can make it difficult to move far away.

Indeed, the setting of telework/teleworkable days is, in principle, a matter for the employer's management, a prerogative that can be arranged in the collective agreement or charter.

Consequently, if the employer does not allow employees to gather telework days and/or to combine them with weekends, for example by requiring employees to be present every other day, moving far away from the premises cannot be a sustainable solution.

It is not sustainable for an employee who has, for example, a 2-hour train journey to reach his or her workplace, such as Paris-Bordeaux, to make a 4-hour daily journey several times a week, not counting the time it takes to get to the station.

A long-distance move seems only possible if the employee can travel to and from work only once a week, even if it means staying in a hotel or a flat rented on a platform for one or two nights.

As regards the issue of reimbursement of transport costs, the intuitive solutions that some employers thought of were to refuse to reimburse these costs or to reduce the remuneration of the employees concerned, arguing that it was not the employers' responsibility to bear this additional financial burden.

Refusal of reimbursement is simply not a legally valid option, the texts and the administration being very clear on this point.

The modification of remuneration conflicts with two legal principles:

- Firstly, remuneration is an substantial element of the employment contract which cannot be unilaterally modified by the employer, on the pretext that the employee has unilaterally increased the amount of the reimbursement of transport costs;

- Furthermore, with regard to the principle of “equal pay for equal work”, employees doing the same work must receive the same remuneration and the remuneration of teleworking employees must respect this principle.

Having said that, a first option that could be considered would be to allow employees with a long commute (in particular linked to their move) to telework completely or almost completely. This could be justified in terms of the employer's safety obligation, in order to limit the travel time of the employees concerned. However, this solution could be counterproductive, encouraging employees to move away from their place of work.

A second option to be explored would be to compensate for the increased cost of reimbursing means of transport with a lower pay scale, justified by a disparity in the cost of living.

Indeed, the Court of Cassation has long held that “a difference in treatment established by a unilateral undertaking may only be applied between employees belonging to different establishments and performing equal work or work of equal value if it is based on objective reasons, the reality and relevance of which must be verified by the judge” (Cass. Soc. 21 Jan. 2009, n° 07-43.452 to 07-43.464).

In this respect, the courts, supported in their analysis by the Court of Cassation, have validated differentiated salary scales, established unilaterally by the employer, justified by a disparity in the cost of living:

“But whereas a difference in treatment established by unilateral commitment may only be applied between employees belonging to different establishments and performing equal work or work of equal value, if it is based on objective reasons, the reality and relevance of which the judge must check;

And whereas having noted that the disparity in the cost of living invoked by the employer to justify the difference in treatment it had implemented between the employees of an establishment located in Ile-de-France and those of an establishment in Douai was established, the Court of Appeal deduced exactly that this difference in treatment was based on a relevant objective justification” (Cass. Soc. 14 September 2016, nº 15-11.386).

It could thus be envisaged to establish differentiated salary scales, depending on the number of days of telework and the place of telework. This difference in salary would compensate the increased cost of reimbursing means of transport, which would therefore be neutral for the employer.

For the employees concerned, the overall remuneration (salary and reimbursement of transport costs) would remain equal and moving to an area with a lower cost of living would remain attractive.

However, these solutions will have to be scrutinized by the courts to be considered sustainable.

In conclusion

The telework constraint linked to the COVID-19 pandemic has had the merit of moving the lines and overcoming certain reticence that may have existed.

Thus, a number of employers understood that opposing the principle of telework was taking the risk of going against a social evolution and took the opportunity to perpetuate the principle of telework beyond the health crisis.

However, the introduction of telework may create operational difficulties or change the contractual balance.

Preventing these situations should be done as early as possible, by anticipating them in the legal act setting up telework (collective agreement, unilateral charter).

The introduction of telework in a hurry, in the particular circumstances of a pandemic, has often not allowed companies to do so. The perpetuation of telework beyond the health crisis should be an opportunity to review the situation, if necessary with support.