Published in the Official Journal on 23 September 2017, the ordinance on the predictability and safeguarding of labour relations aimed at simplifying and promoting access to telecommuting is effective immediately.
In 2016, it is estimated that 16.7% of the French “telecommuted” more than one day per week, the majority of them (64%) working from their home. The Government has also indicated that 61% of French employees hope to benefit from this method of working.
As a reminder, telecommuting means all possible forms of work organization whereby work that could also have been performed on the employer’s premises is carried out off these premises, on a voluntary basis using information technology and communication methods.
Henceforth, telecommuting shall be introduced within the company through a collective agreement or, failing that, a charter drawn up by the employer after consultation with the Economic and Social Committee (the new employee representative body). The redrafting of Article L.1222-9 of the French Labour Code removes the reference to the employment contract as a way of implementation of telecommuting. However, what remains unsettled is whether companies wishing, for example, to implement telecommuting for a very limited number of employees must necessarily proceed via a charter or collective agreement, or if, by way of derogation, companies can still provide recourse to telecommuting via an employment contract and/or an amendment to the employment contract as before.
In the event the employment contracts (concluded prior to the ordinance) contain stipulations which conflict or are incompatible with the new collective agreement or the charter, the Ordinance provides for an automatic substitution of the new provisions to replace the conflicting or incompatible clauses. The employee has one month from the date at which the agreement or the charter was disclosed within the company to oppose this automatic substitution.
Occasional telecommuting would indeed be possible via a simple agreement between the employer and the employee, which can be formalized by any means. An employee occupying a position which qualifies for a remote method of working who is faced with personal constraints may therefore apply for telecommuting. In the event the employer refuses, he must justify this refusal.
In addition, the ordinance provides that should an accident occur in the place where the telecommuting is exercised during the working hours, then it is presumed to be a work accident within the meaning of Article L.411-1 of the French Social Security Code.
Last but not least, the ordinance removes the obligation for the employer to bear the costs resulting directly from performance of the telecommuting, e.g., cost of the hardware, software, subscriptions, phone calls and tools as well as the maintenance thereof. In concrete terms, the costs related to the adaptation of the premises into an office (desk, office chair, etc.) the costs of IT equipment (computer, printer, etc.), connection (telephone subscription, internet, etc.) and various office supplies (reams of paper, ink cartridges, etc.) will no longer automatically be borne by the company.
However, the ordinance makes no provision for a home office allowance paid by the employer to compensate for usage of the home for professional purposes (created by case law) assuming that use of the home is required by the employer, since the employer does not provide the employee with an office. We consider this is still due under the same conditions.
With telecommuting thus promoted favourably, employers shall have to deal with the delicate task of accurately defining, via collective agreement or charter, the conditions of employees’ eligibility to work from their home and the conditions under which this telecommuting shall be organized, in such as way as to ensure that telecommuting is a success and not a source of stress for managers.