New technologies and digitalization have greatly impacted work practices in France as elsewhere over the past number of years. Teleworking has gradually become part of the working environment at least for certain categories of white collar workers. The initial sudden lock down due to Covid 19 in March 2020 and the continuing pandemic since then has accelerated greatly the move to teleworking with many “teleworkable/office” jobs currently being done 100% remotely.
This sudden acceleration to 100% teleworking for many if not most office jobs has also significantly impacted labor relations. The most significant example of a much changed French labor relations landscape is the announcement on 26 November 2020 of the signing by French social partners of a National Interprofessional Agreement on Teleworking after one of the swiftest rounds of negotiations in recent history.
On the employers side, 3 key employers’ organizations (MEDEF, CPME and U2P) signed up and 4 of the 5 main trade union confederations agreed (CFDT, FO, CFE-CGC, CFTC). Only the CGT refused to sign.
Prior to this Agreement, teleworking was regulated by the national interprofessional agreement of 2005 and by articles L.1222-9 and following of the French Labor Code as amended buy Ordinance N° 2017-1387.
The November 2020 Agreement seeks to provide a framework clarifying the rules and conditions governing teleworking both as a normal practice and in exceptional circumstances. Significantly, rather than setting prescriptive or normative binding rules on employers, the Agreement emphasizes the importance of social partnership and negotiations between employers and trade unions as a means of implementing new teleworking arrangements.
The Agreement provides guidelines covering three key topics:
- Recognizing teleworking as a “normal work practice“.
- Setting up teleworking arrangements agreements.
- Managing teleworkers either as normal work practice or in exceptional circumstances.
Below are some of the Agreement’s key recommendations for each topic.
- Teleworking as a “normal work practice”
The March 2020 Covid19 confinement imposed unplanned widescale teleworking on many employers and employees. The social partners now recognize that it is important to learn the lessons from this unplanned teleworking and to build business continuity plans that plan for increased teleworking in the future either as a normal way of working or in exceptional circumstances.
When introducing or generalizing teleworking, employers are encouraged to pay particular attention to :
- IT infrastructure and tools when defining and rolling out structured teleworking.
- work force cohesion to ensure that increased teleworking does not drive a wedge between those employees benefitting from teleworking and those whose jobs are not “teleworkable” and must work on site. Employers wishing to implement teleworking as a normal work practice should proceed on a trial basis, followed by a lessons learned phase identifying the key success factors before establishing teleworking on a permanent basis. This gradual roll out will allow employers to adapt the plan to their particular situation because “one size does not fit all“.
- The Agreement recognizes that teleworking is now a positive option for many employees and employers who see a lot of benefits in working remotely:
- less travel time home to work
- less business travel,
- better work-life balance,
- greater employee autonomy and empowerment
- ….
- Teleworking can even be an advantage for employers finding it diffucult to attract suitable candidates for whatever reason. The Agreement therefore recognizes that teleworking can now be part of a new joiner’s working conditions and contractual terms and conditions or can be implemented as part of an employee’s current work contract. In such cases, work contract addenda are no longer required and a mutual agreement between employer and employee is sufficient, preferably in writing.
2. Setting up teleworking arrangements
The Agreement recommends implementing teleworking arrangements through formal work agreements with trade unions representatives if such exist or if not possible, through an employer’s charter after due consultation of the Works Council (CSE) if such a body exists.
Any work agreement or charter should specify:
- the terms and conditions of switching to telework and returning to on-site working
- how employees formally notify acceptance of teleworking
- how employees’ teleworking time and work load will be monitored
- periods in the work day when employers can contact an employee teleworking
- how handicapped workers can avail of teleworking
Of course, in exceptional circumstances, such as during a pandemic or “cas de force majeure”, employers can unilaterally resort to teleworking and in such circumstances, it remains the employer’s unilateral decision and responsibility as per legal provisions (L. 1222-11 French Labor Code).
Importantly, to facilitate a swift and effective implementation of teleworking arrangements, employers should define the criteria required to identify and map jobs that are “teleworkable“. This “teleworkable jobs mapping” should be subject to discussions with workers representative bodies where they exist or if not, directly with employees.
In the absence of a work agreement or an employer’s charter, teleworking can also be implemented through any mutual one-to-one agreement between employer and employee. Teleworking requires therefore a mutual agreement between employer and employee. An employer can decide to accept or reject any request by an employee to switch to teleworking. Outside of teleworking in exceptional circumstances, a refusal by an employee to telework is not grounds for dismissal.
A mutual agreement can take any form but it is recommended to establish one in writing. When a formal work agreement or a charter exists, as per L.1222-9 of the French Labor Code, an employer should notify any rejection of a teleworking request in writing.
3. Guidelines to manage impact of teleworking once implemented
The Agreement formally recognizes teleworking as normal work arrangements and underlines the following:
- Subordination: When teleworking, the employee remains subordinate to his/her employer at all times
- Working time remains the same. Provisions concerning daily & weekly rest, work breaks, holidays and rest days are the same and method of calculating hours worked are the same.
- Availability: After discussion with the teleworker, the employer should set the periods in the day when the teleworker can be contacted, aligned to the company’s normal working hours and rules.
- Monitoring work: Should the employer implement a specific work time monotoring system/tool, this system/tool must be justified by the nature of the work performed and proportionate to the objective and the employee must be informed beforehand. Any IT system/tool implemented to track teleworkers’ work time can only be implemented after the prior consultation of the Works Council(CSE) and after having informed the teleworkers concerned.
- Right to disconnect: Any teleworking initiative must cover “employees’ right to disconnect” which should be covered by a work agreement or employer’s charter. The right to disconnect is already a mandatory subject of negotiation between social partners which seeks to ensure that employees can disconnect from company communication tools once they have completed their normal working day.
- Annual review: An employer should organize each year an interview with teleworkers to review the teleworkers’ working conditions and work load.
- Data protection: Employers must take all measures to protect confidentiality and data of teleworkers and all data used by the teleworker (notably in compliance with EU GDPR legislation. Teleworkers should receive guidelines concerning data confidentiality rules and protocoles should be implemented to ensure confidentiality and secure access to company servers.
Other key points are considered:
- Employee expenses: any expenses incurred during teleworking on behalf of the employer should be met by the employer, subject to the latter’s prior approval. What specific costs are covered remains a subject of negotiation between social partners. Should an employer pay a flat rate to indemnify teleworkers, such indemnities are considered legitimate and not subject to social charges within the limits defined by current legal provisions.
- Training: Teleworkers, their managers and colleagues should receive training to allow them to adapt to specific nature of teleworking.
- Frequency of teleworking: The frequency of teleworking is determined by agreement between employer and worker on the basis of any work agreement or charter implemented. Employers should remain vigiliant with regard to balancing teleworking with on-site working in order to maintain social cohesiveness and avoid organisational disfunctions.
- Communication is a key success factor and employers are reminded to pay particular attention to communication in order to preserve operational effectiveness of teleworking.
The Agreement focuses also on Health & Safety issues :
- The same French labor code and collective bargaining agreement provisions apply to teleworkers as to on-site workers even if it should be recognized that employers do not have the same oversight of teleworkers as they do for on-site workers
- Teleworking should be included in the company’s mandatory risk assessment approach specified in article L. 4121-1 of the French Labor Code and as such teleworking should be included in the company Risk assessment document with a particular focus on the risk linked to possible isolation due to remote working and the need to regulate use of digital tools.
- Employers must of course inform teleworkers of the company HSE policy particularly with regard to use of computer screens and work area ergonimics and the teleworker must comply with these health & safety rules.
- As teleworking is just another form or working, any accidents occuring during teleworking are considered as work accidents and declared to authorities as such.
The Agreement also focuses directly on training requirements for managers and teleworkers. Significantly, it stresses that successful teleworking relies on a relationship of trust between manager and teleworker and identifies 2 key aptitudes required by every teleworker: autonomy and job responsibilities suitable for telework.
Managers and the management chain have a key role in making teleworking a success. The Agreement underlines the manager’s role in setting teleworkers’ objectives according to their circumstances and their role in ensuring smooth connection between work performed by teleworkers and on-site workers. If the key ingredient for telework is trust, managers must at the same time set clear objectives for those working remotely. Clear objectives coupled with autonomous, empowered teleworkers will free up time for managers to focus on matters such as optimizing workload or solving organisational issues and will help to avoid micromanagement.
The Agreement recommends including the following topics in designing training courses for managers, teleworkers and on-site workers :
- how to adapt job activities to teleworking
- how to develop the autonomy of teleworkers
- how to structure the work day by stages
- respecting work legislation and the right to disconnect in a teleworking context
- how to regulate use of digital tools
- how to set objectives in a team mixing remote and on site work.
Finally, given the increased importance of digital tools for teleworking, the Agreement stresses that all managers and employees should receive training in how to use digital tools and how to manage cybersecurity and data protection risks.
The Agreement makes other recommendations:
- Managers should be sensitive to employees with health problems or handicaps and carers for whom teleworking could have positive impact. At the same time, managers must ensure that all employees benefitting from teleworking remain part of the team and do not become cut off or isolated from team activites and objectives.
- All employees including teleworkers should receive information on company assistance programs and SOS help lines and contact details in the event of personal or professional issues.
Indeed, one of the underlying themes of the Agreement is the insistence on preventing teleworkers from being cut off from their on-site co-workers. The Agreement recommends that:
- teleworkers be able to alert their management in the event they feel isolated or cut off
- all teleworkers should be provided with the contact details of HR and the company health service whom they can contact if necessary.
Labor Relations is also covered by the Agreement and specific recommendations are made to foster and maintain good labor relations and social dialogue in a teleworking context. For example:
- Workers and workers’ representatives continue to enjoy the same legal and conventional rights as they enjoyed when on-site
- Social partnership and mandatory annual negotiations and obligations continue when teleworking as under normal circumstances or exceptional circumstances and while on site works council meetings are always preferred, certain meetings can be held remotely.
Finally, the Agreement addresses some of the lessons learned by employers during the sudden move to teleworking “en masse” in March 2019 and particularly the need for employers to review their business continuity plans where these exist or create such plans if not to cover teleworking as a result of exceptional/unforeseen circumstances/cas de force majeur such as a pandemic.
With this in mind, the Agreement insists on including in any eventual work agreement or employer’s charter the following:
- the conditions and means of resorting to teleworking in the event of exceptional circumstances/cas de force majeure
- a mapping of “teleworkable jobs” beforehand to ensure a swift implementation of teleworking in the event of cas de force majeure.
If no works agreement exists, the Works Council (CSE) must be consulted concerning the measures planned to ensure business continuity. And if no WC exists, it is recommended for employers to consult with employees before implementing any business continuity plan unilaterally.
In the event of an emergency requiring an employer to implement urgently teleworking en masse, as in the case of Covid19 in March 2020, on the basis of article L.1222-11 of the French Labor Code, an employer can decide unilaterally to switch some or all employees to teleworking and consult the WC (CSE) as soon as possibly subsequently. The rule of mutually agreed teleworking does not apply. However, the employer must inform employees by whatever means possible and in writing if possible.
Otherwise, the rules applying to teleworking during exceptional circumstances are the same as the rules for teleworking in normal circumstances mentioned above.
One important point to highlight: in the event of teleworking due to exceptional circumstances, employees can now use their own equipment if the employer has not had time to provide any. Concerning Labor relations in exceptional circumstance resulting in significant teleworking, the Agreement recommends implementing a protocole between the social partners to clarify the operational rules with regard to mandatory WC meetings and consultations so that flexibility can be introduced with regard to mandatory consultations and to allow for WC meetings by visio.
Commenting afterwards, one of the employers’ representatives, M. Hubert Mongon of the MEDEF expressed satisfaction at the Agreement whcih he considered as operational and pragmatic. If the trade unions that signed were more muted in their praise, all expressed satisfaction at the much needed clarification to teleworking practices both in normal and in more exceptional/cas de force majeure circumstances.
A pragmatic step in the right direction bringing much needed clarity to the teleworking jungle!
Footnote: the French Ministry of Labor has formally authorized as of 7 January 2021 employees currently teleworking 100% to return to site work one day a week if circumstances permit and if their employers agree.
See below the French version of the Interprofessional Agreement.
French Labor Ministry Covid19 Employers’ Protocol updated 6 January 2021
https://travail-emploi.gouv.fr/IMG/pdf/protocole-national-sante-securite-en-entreprise.pdf
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