Newsletter - july 2018

French Ordinance 2017-1387 of 22 September 2017 simplified the rules governing the organisation of homeworking. Homeworking is defined as “any type of work organisation by which work that could have been done within the employer’s premises is voluntarily performed by an employee outside these premises, using information and communications technologies”. According to a survey conducted by IFOP, 56% of French people would like to home work, but only 25% actually do.

A defined legal framework

Homeworking is seldom envisaged on a regular basis and most employees who work at home only do so occasionally. Until now, these were relatively informal practices and the stated aim of the reform is to secure occasional homeworking. Homeworking may now be organised “within the framework of a collective agreement or, in the absence of such an agreement, of a policy developed by the employer after consulting the social and economic committee, where one exists” (Article L.1222-9 of the French Labour Code). Furthermore, “in the absence of a collective agreement or policy, when the employee and the employer agree to use homeworking, they may formalise their agreement by any means”.

This latter point therefore means that the homeworking arrangement need no longer be formalised in the employment contract. As a result, an employer who formalises the possibility of homeworking by any means outside the employment contract is no longer deprived of a legal framework as before. Furthermore, the collective agreement and the policy have the advantage of defining a collective framework applying to all employees whereas an employment contract must be processed individually.

Content of the collective agreement or policy

The collective agreement or a policy on homeworking must include:
1) The conditions for transition to a homeworking arrangement, particularly in the event of a pollution episode mentioned in Article L.223-1 of the Environment Code, and the conditions in which the employee may return to a non-homeworking position;
2) The manner in which the employee will accept the terms and conditions of the homeworking arrangement;
3) The manner in which working hours will be monitored and the workload regulated;
4) The determination of the timeslots within which the employer may usually contact the homeworker.

If the employee meets the criteria detailed by the collective agreement or policy and asks to benefit from a homeworking arrangement, the employer must justify any refusal of the employee’s request. However, the employer may give any reason for the refusal: need for the work to be done within the company, need to be on duty, limitation on remote access to technology for security reasons, etc. Only discriminatory reasons naturally remain prohibited.

Employees may refuse a homeworking request made by the employer and such refusal may not give rise to disciplinary measures. An employer cannot therefore force an employee to work from home.

Organisation of homeworking

The employer is no longer required to pay the costs inherent in homeworking (internet access, electricity, insurance, etc.) whereas before, they were required to cover such costs even though the law did not provide any guidance about the amount to be paid. Employers were therefore left in the dark as to the assessment of the sum.

The employer remains under the obligation to:
1) inform the employee of any restriction on the use of equipment or hardware or electronic communication services and the penalties applicable if they fail to observe such restrictions;
2) give the employee priority to take up or resume a non-homeworking position which matches their qualifications and professional skills and to inform the employee of any such vacancy;
3) organise an annual meeting at which the conditions of the employee’s activity and workload are also addressed.

Social security regime

Social security contributions are due on a homeworker’s pay in the same way as the company’s other employees; they have the same social security cover. An accident occurring at the place at which the homeworking is done during performance of the professional activity is deemed a workplace accident.

We are entirely available if you have any further queries about the issues discussed in this newsletter or about any other accounting, tax, social security or law related topic.

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