Pursuant to Article L. 1222-9 of the Labor Code, in the absence of a collective agreement or charter, when the employee and the employer agree to implement remote work, they formalize their agreement by any means.
Article 8 of the agreement dated June 14, 2018, regarding remote work within the applicable collective bargaining agreement, stipulates the following regarding the reversibility of remote work:
"The employer may require the employee to return to full-time work at the office premises for reasons specified in the remote work addendum or the remote work clause of the employment contract (for example, failure to comply with rules regarding the use of remote work equipment provided by the employer, office reorganization, or the employee's relocation). This decision must be notified to the employee in writing, delivered against a signed receipt. Remote work activity then ceases, subject to a minimum notice period of one month. The employee's return to full-time work at the office premises shall be accompanied by a meeting intended to facilitate the transition."
Ms. X maintains that her employment contract expressly states she was entitled to two days of remote work per week, citing Article 3-1, which reads as follows:
"The employee is required to be present at the registered office located at 137-139 Rue Marcadet — 75018 Paris, three days a week (Monday, Wednesday, and Friday)." "The employee shall work from her home, located at …, for a maximum of two days per week (Tuesday and/or Thursday), with no substitution permitted in the event of public holidays without the employer's prior agreement." She explains that the fact that this constitutes an essential element of her employment contract is evident from the procedure initiated by the firm to attempt to modify this point—by proposing that the employee sign an amendment (referencing the email of July 24, 2023, and the letter of December 8, 2023, a modification she refused via a letter dated December 8, 2023)—and from subsequent email exchanges in which the company wrote to her: "Should you, exceptionally, fail to be present tomorrow, your absence will be deemed unjustified. All consequences thereof will be drawn." In response, the company maintains that, since the employment contract did not expressly provide for the conditions of a return to working without telecommuting, Mr. B sent a proposed amendment to Ms. X on December 8, 2023—upon her return from sick leave—to supplement the initial contract on this point; he expressly specified that this was merely an "adjustment of working conditions," with the essential elements of the contract (such as remuneration, working hours, and duties performed) remaining unchanged; the draft amendment stipulated that "the return to on-site work alters only the manner in which the work is performed"; and the employment contract stated that the two scheduled telecommuting days were specified as a maximum, not a minimum. The documents submitted show that remote work was provided for in the employee's initial contract, that she had been working remotely since May 23, 2022, and that on December 8, 2023, the employer sent her a draft contract amendment accompanied by a letter stating: "I am confirming our meeting today and wish to inform you that, following the reorganization of the family law department to which you belong—which also involves the arrival of a new staff member—the arrangements for work management and organization must be revised. (...)
This means that remote work is no longer an option (...) given that on-site presence is essential for both receiving clients and managing case files."
It appears that Article 8 of the June 14, 2018 agreement on remote work (part of the applicable collective bargaining agreement) allows the employer to revoke remote work arrangements. However, this is subject to the condition that the contract specifies the grounds for returning to company premises and that a minimum notice period of one month is observed.
In this case, Ms. X's employment contract did not specify grounds for a return to the office, and the employer failed to observe the one-month notice period. Under these circumstances, the employee was justified in refusing to return to on-site work, and the requirement to return was not valid.
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
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