Telework, a mode of work organisation to be regulated

With the lockdown imposed by the Government during the first wave of Covid-19, telework found itself, overnight, the only possible mode of organisation to allow an activity while limiting travel and interaction in the workplace.

The end of confinement and the return to the office was to put an end to this imposed telework.

However, many employees and companies have found it useful to keep this way of organising work and have wished to maintain a hybrid work pattern, combining teleworking days with on-site presence.

Some figures illustrate the growth of telework over the last 2 years:

  • In January 2021, 27% of employees were teleworking compared to 4% in 2019 *;
  • 30% of teleworkers teleworked regularly (between 1 and 4 days per week in January 2021) *;
  • Telework is more common among managers (58%);
  • Telework is much more widespread in Ile-de-France (56% of employees living in Paris, 36% living in the rest of Ile-de-France against 10% of employees living in the DOM and low density communes).

The question of telework is regularly asked during job interviews and is highly favoured by employees.

However, teleworking is not without risks on several levels: longer working hours, risk of isolation, forgotten right to disconnect, connection problems, poor working conditions at home, etc.

A few precautions are therefore necessary to frame telework and limit the risks.

1. Definition and applicable regulations

Today, telework is governed by three overlapping texts:

Telework is defined by Article L. 1222-9 of the Labour Code as: "any form of work organisation in which work that could also have been performed on the employer's premises is carried out by an employee away from these premises on a voluntary basis using information and communication technologies".

It is only in the light of these criteria that telework can be characterised.

2. The implementation of telework

Article L.1222-9 of the Labour Code provides for 3 ways of introducing telework in the company:

  • a collective agreement at branch, company, establishment or group level
  • failing that, a charter drawn up by the employer after consulting the social and economic committee, if it exists;
  • a written agreement between each employee concerned and the employer.

There are subtleties depending on whether or not the company has trade union delegates. Do not hesitate to call upon the firm to assist you in these matters.

Still according to Article L.1222-9 of the Labour Code, the collective agreement or charter must provide for

  • the conditions for switching to telework, in particular, in case of a pollution episode mentioned in article L. 223-1 of the Environment Code;
  • the conditions for returning to a work contract without telework (adaptation and reversibility clause);
  • the terms of acceptance by the employee of the conditions of implementation of telework;
  • the modalities of control of the working time or regulation of the workload;
  • the determination of the time slots during which the employer can usually contact the teleworking employee;
  • the terms of access to telework for disabled workers in application of the measures provided for in Article L. 5213-6 of the Labour Code and for pregnant employees.

Note :  The collective agreement or charter replaces contrary or incompatible clauses in employment contracts signed before 24 September 2017. The employee concerned may refuse this substitution by informing his or her employer within one month of the date of communication of the agreement or charter in the company. It is advisable to point out this possibility in the document.

3. Is telework a right for the employee?

Faced with the emergence of this question, the ANI of 26 November 2020 replaced articles 2 and 3 of the ANI of 19 July 2005: according to these provisions, telework is voluntary for the employee and the employer.

This does not allow the employee to demand telework or the employer to refuse it outright.

Thus, if telework is not a right, if a request to move to telework comes from an employee occupying a position eligible for telework under the conditions provided for in the collective agreement or charter, the employer must give reasons for refusal. The same applies, in the absence of a collective agreement or charter, when the request is made by a disabled worker or a carer.

Particular care should be taken when drafting the collective agreement or charter to regulate the conditions of access to telework. Do not hesitate to call on the firm to assist you in these matters.

In the absence of a written agreement, judges may even characterise a situation of compulsory telework, which prevents the employer from modifying the employee's organisation (Orléans Court of Appeal, 7 December 2021, No. 19-01258).

In any case, the refusal by the employee of a teleworker position is never a reason for termination of the employment contract.

4. Social benefits for teleworkers

The teleworker has the same rights as his/her colleagues working on site.

In these circumstances, no difference should be made in the rights granted to teleworkers on this basis alone.

This question is nevertheless regularly debated in the courts and gives rise to decisions which we recall here.

  • Reimbursement of telework-related expenses

It is on this issue that disputes most often crystallize.

Even if the law does not provide for the assumption of costs arising directly from the exercise of telework (subscriptions, communications, etc.), the employer must in principle assume these costs because of the obligation to assume professional costs incurred on behalf of the company in the performance of its duties.

Similarly, Article 7 of the 2005 ANI provides that the employer shall in all cases bear the costs directly generated by telework, in particular those related to communications.

Article 3.1.5 of the 2020 ANI states that the company must cover the expenses incurred by the employee for the needs of his or her professional activity and in the interest of the company, after validation by the employer.

The employer must therefore cover the professional expenses incurred by telework: either in the form of a reimbursement in real terms, on production of expense receipts, or by payment of a flat-rate allowance.

In order to facilitate the management of telework-related expenses, URSSAF allows, by way of derogation, the possibility of paying a fixed allowance based on the number of days of telework:

  • 10 euros per month for one day of telework per week up to a limit of 50 euros per month (BOSS-FP-1810) ;
  • or 2.50 euros per day, up to 55 euros per month.

All teleworking employees are entitled to the same allowance to compensate for the costs related to teleworking, without distinguishing between regular teleworkers and those placed in telework due to exceptional circumstances (TJ Paris 28-9-2021 n° 21/06097).

A noter : The Court of Cassation also considers that if the employee accedes to the employer's request to work from home, the latter must compensate him/her for the hardship constituted by the use of part of his/her home for the needs of his/her professional activity and pay for the expenses generated by this use (Cass. soc. 7 avril 2010 n° 08-44.865 ; Cass. soc. 7 April 2010 n° 08-44.865; Cass. soc. 14 September 2016 n° 14-21.893).

  • What about transport costs?

The employer is obliged to cover at least 50% of the cost of public transport passes to get to work.

In application of the equality obligation, the employer must pay the same proportion of the travel expenses of teleworking employees for their travel between their usual residence and their place of work if the teleworking is carried out on an alternating basis, without any reduction according to the days of teleworking (QR min. trav. updated on 24 January 2022).

On the other hand, if the employee is teleworking at home "continuously" over the month or week, the employer is not bound by this obligation, as long as the employee did not have to make any journey between home and work using his or her transport pass during the period in question.

The courts also consider that the introduction of a criterion of geographical distance between the usual residence and the workplace of employees in order to refuse the reimbursement of public transport costs of employees, which is not provided for by any text, constitutes an inequality of treatment (TJ Paris 05 July 2022 - 22/04735).

  • What about holiday vouchers and meal vouchers?

The teleworker also benefits from holiday vouchers or meal vouchers (QR min. trav. mis à jour le 24 janvier 2022QR min. trav. updated on 24 January 2022; Doc. Urssaf at 4-1-2022).

Even if the courts have given mixed decisions, it seems to us that the question of meal vouchers does not suffer from any exception as long as teleworkers are placed in the same situation.

5. Working conditions and protection of the teleworker

The teleworker is an employee of the company who works at home. Under these conditions, the employer is still obliged to protect their health and safety in the same way as other employees on site.

However, the ANI of 26 November 2020 qualifies the principle of the application of legal and conventional provisions relating to health and safety: "account must be taken of the fact that the employer cannot have complete control over the place in which telework is carried out and the environment, which falls within the private sphere. Thus, "telework can be the subject of an appropriate occupational risk assessment".

However, there are several situations which may cause difficulties in the management of teleworkers because of this close link with the working community.

In particular, telework raises the need for increased vigilance on the part of the employer with regard to psychosocial risks due to a feeling of isolation, the difficulty of separating personal and professional life, digital "over-connection", poorly designed objectives or more difficult monitoring of activity.

Training of teleworking employees and their managers, and formalities prior to teleworking (computer equipment and security / insurance / ergonomics of the workplace at home, etc.), everything must be well thought out and supervised so that teleworking goes smoothly.

The employer must also take the necessary measures to control the working hours of teleworkers. The employer is also obliged to organise an annual meeting to discuss the teleworker's working conditions and workload.

Special "telework" documentation package

Drafting your collective agreement or your charter, preparing a teleworker's guide, we have worked out a special "telework" documentation package for our clients. Do not hesitate to call on the firm to assist you in these matters.

6. Telework abroad: a more topical issue than ever

The rise of telework has also led some employees to ask for the possibility of teleworking abroad.

In principle, there is no legal prohibition against this.

However, in practice, the attention to be paid to this issue should not be minimised as there are many social, tax and welfare consequences.

For information, within the European Union, any employee who carries out his activity on the territory of a Member State or who works in the State of residence for at least 25% of his working time per month is subject exclusively to the social legislation of that State. Outside the European Union, there are bilateral agreements between countries which determine the social security rules applicable between those of the country of origin and those of the country of employment abroad.

The law of the applicable employment contract itself may be affected because, unless the parties agree otherwise, the applicable law may be that of the country where the employee usually carries out his work.

Finally, regarding tax rules, the host country's legislation may also require that income generated by the activity carried out by the teleworker in the host country be subject to the tax of the host country.

Telework, under its apparent simplicity, remains a subject with strong social and legal implications which should not be neglected.

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