In the absence of any particular reference in the contract relating to the place of performance of the work, the French case-law has created the concept of geographical area to assess the scope of a change in the workplace: any change within the workplace in the same geographical area does not lead to a change in the contract and a mutual agreement is not needed.
In the same geographical area a transfer is considered as a simple modification of the working conditions, which is imposed on the employee. However, the employer must respect a reasonable time to inform the employee of his transfer. He is also required to explain his decision. It also admitted that a one-off trip outside this geographical area could, under certain conditions, be imposed on the employee.
However the prior agreement of the employee is mandatory if the transfer of the work is outside the usual workplace and in another geographical area. In this case and outside the geographical area the transfer is considered as a modification of an essential element of the employment contract and an agreement of the employee is necessary.
However even in this case the agreement of the employee is not necessary in the following cases:
- application of a mobility clause,
- signature in the company of an internal mobility agreement,
- or in the event of temporary transfer motivated by the interest of the company and justified by exceptional circumstances.
The employer must inform the employee of his transfer within a reasonable time. In any ways the employer cannot force the employee to establish his residence in the department of his new place of work (Cass, company 15-5-2007 n ° 06-41.277 FS-PB: RJS 7/07 n ° 811).
The definition if or not the change is still in the same geographical area must be assessed objectively, in the same way for all employees, without taking into account the personal situation of each of them in terms of their journey (Cass, company 4-5-1999 n ° 97-40.576 PB: RJS 6/99 no. 792). In the event of a dispute, only the judge can assess whether or not the proposed transfer corresponds to the geographical area of the employee. It can be based on criteria such as, for example:
- the distance between the establishments,
- the extension of the journey time to be planned,
- the quality of public transportation serving the new workplace.
The transfer of an employee who is not subject to a contractual obligation of mobility, or whose contract does not provide in a clear and precise manner that the person concerned will perform his work exclusively in a specific place (Cass. 2003 n ° 01-40.376 FP-PBRI and n ° 01-43.573 FP-PBRI: RJS 8-9 / 03 n ° 980; 15-3-2006 n ° 02-46.496 F-PB: RJS 6/06 n ° 684 ), the contract may only be modified by agreement of the employee if the new place of work is in a different geographical area (Case 16-12-1998 No 96-40.227 P: RJS 2/99 No 157; -2006 No. 04-41.880 F-PB: RJS 7/06 No. 808).
By way of derogation, an occasional trip outside the geographical area where the employee usually works may be imposed if it is motivated by the interest of the company, justified by exceptional circumstances and if the employee is informed in advance within a reasonable period of time the temporary nature of the assignment and its foreseeable duration (Company Cass 3-2-2010 n ° 08-41.412 FP-PBR: RJS 4/10 n ° 312; 15-3-2006 n ° 04-47.368 FP : RJS 6/06 n ° 687) or if the functions of the employee imply a certain mobility (Cass Soc., 22-1-2003 n ° 00-43.826 FP-PBRI: RJS 3/03 n ° 313, 2-4-2014 No. 12-19,573 FS-PB: RJS 6/14 No. 462).
In the event of a refusal by the employee of the modification of his contract (i.e. change of the working place outside the geographical area), the employer has an option: to continue the contract under the initial conditions or to take the initiative of a dismissal procedure (Cass, company 26-6-2001 n ° 99-42,489 FS-P: RJS 10/01 No. 1117; 26-11-2002 No. 00-44,517 FS-PB: RJS 2/03 No. 158). If he opts for the dismissal, the procedure to be followed differs according to whether the modification was envisaged for an economic reason or personal.
The modification of the employment contract imposed on the employee by the employer justifies the judicial termination of the employment contract or a taking of an act of the rupture with his wrongs when it is likely to prevent the continuation of the employment contract, which it is for the trial court to decide on a case-by-case basis (Cass., 12-6-2014, Nos. 13-11,448, FS-PB and 12-29,063, FS-PB: RJS 8-9 / 14, No. 626).
This article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Information by ALARIS AVOCATS, English speaking lawyers in France (Paris) specialized in French labor law, especially any kinds of Social Plans, dismissal procedures and labor contract clauses.