Strike from 5 December : teleworking during the lockout, mode of employment

No train or subway to go to work on December 5 ? It is high time to negotiate with your boss to be able to work at your home. And it is very simple.

"Since the orders Work, telework is a right". On 24 November, Muriel Pénicaud has thought it best to improvise a lawyer on the antenna of Europe 1. With his sentence in shock, the minister of Labour intended to reassure listeners that, from the 5th of December, will be found in the "soup" to go to work in the absence of public transport. Alas, the ex-HR director of Danone has taken its wishes for realities. No, telework is not a right. First, because it is not compatible with a very large number of trades, from the cashier to the seller of shoes. Then, because it still requires the agreement of your boss.

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"telework is not a right enforceable against the employer. You can't decide, all alone, to work for you. And conversely, your boss may not require you to work at home," stated Geoffroy de Raincourt, a partner with the firm Fidere Lawyers, who advise companies. "There is no legitimate right to telework, even in the event of a strike. The principle is always that of the double voluntary action", then bid the lawyer Marie-Laure Arbez-Nicolas, who has defended both employers and employees.

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the matter, it is unnecessary to invoke article L. 1222-11 of the labour code, which provides that in case of exceptional circumstances" or "force majeure", "the implementation of telework can be seen as a development of the position of work made necessary to allow the continuity of the business". Not only because this article is in the hand of employers, not employees. But also because he can do nothing to apply in the case of a strike long-planned, so perfectly predictable. In short, the December 5, impossible to call your boss to tell him that you are going to work from your couch until the end of the block trains, buses or subways.

simplified rules

What is true, however, is that the orders Macron cited by Muriel Pénicaud have largely eased in the framework of the use of telework. For the past two years, the principals of good faith can no longer hide behind the complexity of the texts to deny telecommuting. Moreover, many companies jumped in, signing agreements or drafting of charters.

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First reflex to have, in view of the 5 December ? Look at what your company has been able to formalize. "If there is an agreement or a charter, the board is bound by the commitments it has made. If, in this framework, you are eligible to telework, the employer must justify its refusal by objective evidence," said lawyer Carole Vercheyre-Grard, who advises both employers and employees.

The SMS must be specific

there is nothing of such in your company ? Don't panic, this does not preclude telecommuting in early December. Because the labour code is very clear : "in the absence of a collective agreement or charter, when the employee and the employer agree to the use of telework, they formalized their agreement by any means", one can read in the article L. 1222-9. By "any means" ? In theory, a permission orally, before witnesses, is sufficient. But to limit the risk of conflict, it is better to go through the writing. And there, not restriction. A letter, an email, a SMS... you can formalize your agreement as you see fit.

be Aware that the more the text is short, to be more precise, the more it is favourable... to the employee. A boss who is simply a SMS cryptic in which he writes "you can work at home during the strike," authorizes the recipient to work from home during all the conflict. Without setting any rule ! "In his message, the employer should at a minimum remind the provisional nature and exceptional telework, and specify an end date", stresses Marie-Laure Arbez-Nicolas. In practice, lawyers are advising businesses to further secure the conditions of work at a distance. Recalling writing the working hours, the mandatory rest of 11 hours between two working days, the time slots during which the employee must be reachable, the rules of data protection.

"telework at the head of the customer, is prohibited"

the Other point essential to the employer, the principles of equal treatment and non-discrimination. "Telework at the head of the client, it is absolutely forbidden. If you accept that some of your employees work from home, and others do not, you must be able to justify it by objective reasons", recalls Christophe Frouin, partner of the law firm Fidere Lawyers. These can be related to the nature of the tasks to be performed, which make possible or not, this form of employment. But also take into account the particular situation of the employees. For example, it is possible to limit the eligible population to those who live more than 45 minutes walk.

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a subtlety, note that to benefit from the right to telework - even exceptionally, the time of a strike - creates a precedent. The more the employee is granted this opportunity, the more difficult it is to refuse in a similar context. "If it is constant and repetitive, the employer shall authorize teleworking in the case of a strike, it ends up creating a rule that is enforceable. This becomes a use, which is available to employees who have already benefited," says Geoffroy de Raincourt, from Fidere Lawyers. What to give, a little, the smile to all those who are annoyed by the repetition of the strikes in the transport...