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According to Article L.1222-9 of the French Labour Code, telework is a form of work organisation in which an employee, on a voluntary basis, uses communication technologies to carry out tasks that could have been carried out at the employer’s premises. In the absence of a collective agreement or an employer’s charter on telework, a formal agreement between the employee and the employer is required.
In a decision of 1 August 2024, the Paris Labour Court upheld the dismissal for gross misconduct of an employee who teleworked from abroad without her employer’s authorisation.
In this case, an employee was hired in 2019 as a flow and compliance analyst without her employment contract providing for the possibility of teleworking. During 2020, she made several requests to telework from Canada, but her requests were denied. During the Covid-19 epidemic, the company imposed teleworking on all its employees, including those who had chosen to spend the period of confinement abroad, on condition that the teleworking location was in the same time zone as Paris, with a maximum difference of two hours.
At the beginning of February 2021, the company announced to the employees a gradual return to face-to-face work at the end of the month and asked them to communicate their temporary residence abroad, which the claimant did not do. Less than a month later, when asked by her manager about her reduced activity in the morning, the employee stated that she was in Canada and again requested authorisation to work staggered hours and to telework.
She was again denied permission to telework from Canada and asked to report to work 10 days later, which she did not do. She was therefore considered to be absent without leave and stopped receiving her salary.
In April 2021, the employee was called for a pre-dismissal interview scheduled for 14 April 2021, which she did not attend. She was therefore dismissed for gross misconduct.
On 22 July 2021, the employee appealed to the Paris Labour Court, challenging her dismissal on the grounds that she had been discriminated against on the basis of her place of residence and that there was no real and serious reason for her dismissal.
The question before the Council was whether unauthorised teleworking abroad could constitute serious misconduct justifying dismissal.
In a judgment delivered on 1 August 2024, the Paris Labour Court upheld the dismissal for gross misconduct of the employee who had decided to move to Canada and telework there without prior authorisation from her employer. The judges considered that
– Firstly, the employee had not justified a difference in treatment based on her place of residence;
– Secondly, that the dismissal was justified on grounds of serious misconduct in light of the employee’s disloyal behaviour, as she had concealed the fact that she was teleworking abroad and refused to return to work on the premises despite her employer’s request. Such a situation, where the employee is working abroad without her employer’s permission, puts the employer at significant risk of breaching the General Data Protection Regulation (GDPR). As such, the employee’s behaviour constitutes a breach of her obligations under the employment contract, making it impossible for her to remain with the company.
It is therefore considered that an employee’s concealment from her employer of the fact that she is teleworking abroad constitutes a breach of the duty of loyalty attached to the employment contract, which is likely to entail significant legal and tax risks for the company, justifying the qualification of serious misconduct.
This decision by the Paris Labour Court comes at a time when teleworking is on the increase and provides a framework for the sometimes abusive behaviour of employees. However, its scope should be put into perspective, as it is a first instance judgement that is subject to appeal.