Change of the work place

This article relates to the law the labor French.

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The change of the work place can potentially involve for the employee of many nuisances (it can contrary regulating them if it brings closer the employee): increase in the duration and the cost of transport, problems of organization family, tires…

The absence of indication of the work place in the work contract

It may be that the Work place is not mentioned in the Work contract, or at least not precisely. Does that mean that the Employeur can modify unilaterally the work place of the Salarié, this one not being contractualized?

Final displacement

In fact, all depends on the change. Indeed, the social Room of the Court of appeal posed on October 20th 1998 that in the absence of Clause specifies in the work contract, this one must be carried out in same a geographical Secteur, or else that constitutes a Modification of the work contract requiring the approval of the employee.

Therefore, to know if there is modification of the Work contract or simple change of the Work conditions, it should be looked at if it is always about the same geographical sector. But what is then necessary to understand by same geographical sector?

On several occasions, since October 20th, 1998, the social Room of the Court of appeal considered that the displacement of the Entreprise at a long distance (a score of kilometers) inside the Paris region concerned the same geographical sector and did not constitute since a change of the work conditions.

One can see that the difference in place, while being important, can be regarded as pertaining to the same geographical sector. This thus does not bring of precise details on this concept of geographical sector. In fact, it concerns the Power of appreciation of the Juge S, which instead of looking at if in concreto there is a lengthening of the duration of the time of transport as they did it formerly, must from now on appreciate in an objective way if the new work place is in the same geographical sector as that where initially the work station was (social Room of the Court of appeal May 4th 1999).

There is thus no clear answer on what it is necessary to understand by geographical sector, but it is obvious that the larger the distance from the new work place will be, plus that is likely to be regarded as a modification of the work contract. By looking at the various decrees, it seems however that a displacement lower than 20 km is regarded as belonging to the same sector.

Occasional displacement

What has just been specified applies if there is a final change of the work place. What is it occasional displacements?

In fact, that depends on the circumstances of the change. Indeed, an employer can impose on an employee an occasional change of the work place insofar as this change is justified by the interest of the company and that the specificity of the functions exerted by the employee implies his share some geographical Mobilité. In the contrary case, that constitutes a modification of the work contract requiring the approval of paid (social Room of the Court of appeal January 22nd 2003).

It is thus seen that an occasional change of the work place can concern the unilateral capacity of the employer; however that is conditioned with the line of business and the Qualification of the employee.

International contract

However, in the presence of an international contract, the question does not arise insofar as this type of contract is carried out by nature in several places. Thus an employee could not claim that its change constituted a modification of the work contract because it was not affected with a precise place (social Room of the Court of appeal October 20th, 1998).

The indication of the work place in the work contract

Therefore, it was seen that in the absence of mention work place specifies, it had to be appreciated if one remained in the same geographical sector. What is it if the place is indicated in the work contract? In this case, it is legitimate to think that this one is contractualisé and that a modification requires the acceptance of the employee. However, the social Room of the Court of appeal, on June 3rd, 2003, considered that the mention of the place in a work contract had only one informative value, unless a clear Clause and specifies does not stipulate that the employee will exclusively carry out his work only in one place. Indeed, it is possible that the work contract fixes a precise place of work; under these conditions, the employee must exert his work on this place and any change constitutes a modification of the contract.

Therefore, except clear clause and specifies indicating the exercise of work in a single place, an employer can however change the place being reproduced on the work contract, because that has only one informative value. The employee cannot then be opposed to this change which concerns the capacity of direction of the employer.

Nevertheless the capacity of the employer is limited. Indeed, it can change the work place of an employee even if the place is indicated in the contract. But that does not call into question the need for being in the same geographical sector, which constitutes a modification of the work contract that the employee can refuse.

The existence of a clause of mobility

The existence of a clause of mobility in the work contract

It is possible to insert a clause of mobility within the work contract, by which the employee commits himself accepting all changes (within the limit of what is fixed by the clause it even). Nevertheless, to be valid, it must be accepted and signed by the employee, if not it is incontestable for him (social Room of the Court of appeal April 2nd, 1998]). Since it was accepted, the clause of mobility is essential on the paid one: one is located in the field it unilateral capacity of the employer.

The Court of appeal however took the care to specify that the clause of mobility was not to be used by the employer in an abusive way (Plowshare May 18th, 1999, CSB 1999, n° 113, S. 114 - also, Soc. January 10th, 2001, Social Semaine LAMY January 22nd, 2001, p. 10, where the Court of appeal affirms that in spite of a clause of mobility, the employer misuses the right which it holds of his capacity of direction while not ensuring paid the means of going on his new work place - confirmation, Soc. February 6th, 2001, social Semaine LAMY, n° 1016, p. 13) or puts it in work with an aim which is not in conformity with the interest of the company (Plowshare December 15th, 2004, RJS 2005, n° 251). The same applies according to the Court of appeal if the change of the employee carries a reduction of his remuneration (Plowshare December 15th, 2004, RJS 2005, n° 122, where the change affected the variable part of the wages calculated on the benefit of a store less better stocked).

Jurisprudential evolution of the clause of mobility:

Case. Plowshare May 9th, 1990: contractual freedom is framed by the rules of abuse of power of the employer. The employer cannot observe the constraining contractual rules for the employee (clause of mobility) that within the framework of the interest of the company. If not one is in the presence of an abuse of power (in the species, the application of the clause of mobility would have, according to the courts dealing with the substance of a case, destroyed the professional future of paid).

Case. Plowshare September 30th, 1997: The application of a clause of mobility concerns the capacity of direction the employer entering the field the work conditions. The refusal of the change by the employee " constitute in theory an serious error " (1st species) or " is likely to constitute a cause of dismissal " (2nd species).

In the absence of clause of mobility, the transfer of the work place apart from same the " geographical sector " constitute a modification of the work contract requiring the agreement of paid (Case. Plowshare May 4th, 1999). Caution: the jurisprudential concept of “geographical sector” released by jurisprudence to appreciate the validity of a clause of mobility remains a fuzzy concept (ex: in a stop, one finds Castres in the same geographical sector as Toulouse…)

Plowshare, January 12th, 1999, Speelers: this stop comes to bring a LIMIT TO the CLAUSE OF MOBILITY: the clause is null which undermines the free choice of its residence by the employee (bases: article 8 of the CEDH (European Convention of Safeguard of the Human rights) and L.120-2 article of the Labor regulation)

Case. Plowshare November 23rd, 1999: The clause of contractual mobility not being related to a particular circumstance (reorganization of the company) was applicable to the employee. Recall of the validity of principle of the clauses of mobility, provided they are justified by the interest of the company and implementations in a honest way.

Plowshare, March 28th, 2006, n° 04-41.016: The Court of appeal explicitly refuses to see in the change, in application or not of a clause of mobility, an attack with the free choice, by the employee, of the personal and family residence. CAUTION: the stop suggests that if the clause of mobility does not constitute in itself an attack with a fundamental freedom, it could go from there differently if it were accompanied, for example, of an obligation express of transfer of residence, or of a clause of residence. Jurisprudence, with the ell of the article L. 120-2 of the Labor regulation, indeed already cancelled clauses of this type which would not be justified or disproportionate (Case. Plowshare, April 13rd, 2005, D. 2005, IR p. 1248). NOTE: L. 120-2 aims all “individual freedoms”. But all these freedoms are not fundamental (ex: freedom to dress itself with its own way does not enter the field of application of L. 120-2).

Case. Plowshare June 7th, 2006: A clause of mobility must define in a precise way its geographical area of application and can about it confer on the employer the capacity to extend the range unilaterally from it.

A stop of the social room of June 12th, 2006 (Case. Plowshare June 12th, 2006) came to confirm the jurisprudence of June 7th, 2006 (in the following way written clause; “the evolutions in the organization of the company will be able to lead the latter to modify the establishment as well as the office of inapplicable fastening” although the work places, located both in Corsica, were distant only of 50 Kilometers) Consequence: no the limit thus specifies with the clause, nullity of the latter.

Source: http://www.village-justice.com/articles/clauses-mobilite-nouvelles-regles,1683.html

The existence of a clause of mobility in an collective agreement

It may be that the work contract does not refer to this type of clause, but that however the employees are subjected to an obligation of change. Indeed it is possible that the employees are subjected to a Collective agreement in which figure a clause of mobility. So that it is applicable, it is necessary that the employee was informed of his existence at the time of his recruiting; moreover, it is necessary that it was able to take note of it. That thus requires that the collective agreement where figure a clause of mobility exists the recruiting before. If the employee were before committed, one will then need an acceptance of its share so that the clause is opposable for him, because that will constitute a modification of the work contract (social Room of the Court of appeal June 27th, 2002).

The existence of a fault of paid in the event of refusal of its share

As he was said, once accepted by the employee, the clause of mobility is essential on him; that constitutes simple a Changement of the work conditions. Indeed, the employer within the framework of sound unilateral Pouvoir of direction can impose a change to him and the refusal of paid consequently constitutes a fault which is in theory an serious error (social Room of the Court of appeal September 30th 1997). Nevertheless, that is not always the case. Indeed, the judge will carry out a subjective appreciation, i.e. on a case-by-case basis. Certain elements can come to attenuate the gravity of the fault, like the disturbance of the family life, for example. In addition, the clause will not be valid without the agreement of the employee if it involves a modification of its work contract.

Some examples resulting from jurisprudence make it possible to clarify this point:

Thus, it was decided in a stop of January 22nd, 2003 (Case., Soc., January 22nd, 2003) that “the occasional displacement imposed on an employee apart from the geographical sector where it usually works does not constitute a modification of its work contract since the mission is justified by the interest of the company and that the specificity of the functions exerted by the employee implies his share a certain geographical mobility”.

But also:

Plowshare, July 10th, 2002, appeal 00-42937 (on the geographical sector): “the Court of Appeal stated that the change suggested constituted a modification of the contract since there did not exist clause of mobility, that the employer had not respected the conventional provision prescribing the establishment of a letter of recruiting indicating the work place and that since her engagement the wage-earner had always worked in the same living room; That while thus ruling, whereas it resulted from its observations which the change had place in the same geographical sector so that it was not constitutive of a modification of the contract but consisted of a simple change of the work conditions which was binding on the wage-earner, the Court of Appeal violated the text referred to above; ”.

Plowshare, January 10th, 2001, Bull n° 3, N° 98-46-226: “the court of arbitration noted that the wage-earner was unable herself in the absence of public transport to go to the hour envisaged on the new work place which was imposed to him; that it could decide, although the contract comprised a clause of mobility, that the employer, failing to ensure him of the means of going on his work place, had misused the right which it holds of the exercise of his capacity of direction and thus legally justified his decision; ”.

The exclusion of the fault of paid in the event of abuse right of the employer

The employee cannot refuse the application of a clause of mobility which it accepted; however that requires that there is no abuse on behalf of the employer. Indeed, the employer must carry out the work contract in good faith, which will not be the case when it imposes a change in the urgency without taking account of a certain time of attention and reflection. The employer must also take account of the Personal situation of paid and the available employment; thus, an employer cannot impose on an employee in Marital status critical an immediate change in a station which could be occupied by others paid (social Room of the Court of appeal May 18th, 1998).

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