If it is now organized without difficulty in the majority of large companies, teleworking is still far from gaining unanimity among small and medium-sized companies. Lack of equipment, lack of team cohesion, brake on dialogue… There are many arguments used by employers who are reluctant to set up teleworking. However, it was made compulsory, since January 3 and for a period of three weeks, by the Minister of Labor, Elisabeth Borne. And this, at a rate of three days a week, or even four within companies where its implementation is possible. The public service is housed in the same boat, according to the announcements of the Minister of Transformation and the Public Service, Amélie de Montchalin, made on December 27 on his Twitter account.
Established in the health protocol of the Ministry of Labor for private companies, these measures currently have the value of recommendations. Companies do not have a legal obligation to use telework. “However, this does not mean that the company does not risk any sanction today”, underlines Audrey Pascal, lawyer at the Bar of Limoges, doctor in labor law and social protection. Because in application of article L4121-1 of the labor code, the employer has the obligation to ensure the safety and to protect the physical and mental health of the employees. If he does not ensure compliance with barrier gestures and a cluster of Covid-19 cases forms within his company, the employer can be held responsible. “It’s a game: employers who do not wish to deploy teleworking have the right, but they must prove that they have taken health measures”, details Corinne Metzger, lawyer specializing in labor law.
Same ambivalence on the side of the public service. If the implementation of teleworking is said to be “compulsory” for at least three days a week, in fact, the decision to make a teleworking position or not will be up to public employers. “It is the ministries, central administrations or even local authorities that will define the positions that can be done remotely: some will have to stay on site to provide services, others will be able to work from home”, indicates Marie Cochereau, lawyer. specializing in public law. Faced with these ultimately imprecise rules and the arbitrary nature of the decisions taken, it may happen that some employees and public officials feel aggrieved by not being able to telework.
Recourse by private sector employees
If a company refuses to grant days of teleworking to its employees when their daily tasks can be carried out remotely, workers fearing for their health can first apply, if there is one, to the CSE (social committee and economic) of their business. Employee representatives can then refer the matter to the labor inspectorate, which will intervene within a shorter or longer period depending on the number of requests to be processed. If there are no employee representatives in your company, you can contact the labor inspectorate directly (and anonymously). “The inspector goes to the company, and if he finds that nothing has been done to ensure the health of the employees, he can give notice to the employer to take the appropriate measures,” explains Corinne Metzger. If the situation does not change, the inspector can report the case to the public prosecutor’s office, which will be placed in the hands of a criminal judge for “endangering the life of others”. And if the bill on the vaccination pass is voted in the coming days, the labor inspectorate may impose a fine of up to 1,000 euros per employee, within the limit of 50,000 euros per company not respecting the health protocol. .
An employee who considers that the risks to his health are too great can also exercise his right of withdrawal. “If the employer does not distribute a mask, do not space the workstations or even let the employees eat all together in the meeting room, the employee can stop coming to work while waiting for the appropriate measures to be taken”, explains Corinne. Metzger. If he decides to exercise his right of withdrawal, the employee must contact the CSE or the labor inspectorate within twenty-four hours. During the right of withdrawal, wages are due, and the employer cannot be exempted from it only if the judge considers that the employee’s right of withdrawal is manifestly abusive. But according to the lawyer specializing in labor law, the rights of withdrawal for non-application of teleworking have little chance of succeeding. “There really has to be a serious and imminent danger. If the risk is only linked to public transport, that should not work: we cannot consider that the whole population is taking risks by taking transport ”.
Recourse by civil servants
First step for civil servants who are refused their official teleworking request by their employer: the graceful recourse. “The employee can write to his supervisor to complain about an unjustified decision taken in his regard,” recommends Marie Cochereau. Civil servants can also apply to the administrative court within two months: this is called “appeals in excess of power.” The disadvantage of this solution: the deadlines can be very long, between one and two years depending on the administrative tribunal to which one falls. At the same time, the civil servant can request an interim suspension, the time limit for judgment can be between one and three months. “The interest of this summary is to suspend the decision of the administration until the judge can make his decision”, explains the lawyer specializing in public law. And therefore, in the case of teleworking, not to go to his place of work until the judge’s decision is rendered.
But once again, since the announcement of a minimum number of days of mandatory teleworking in the public service, appeals should be difficult to file. Teleworking is normally done on a voluntary basis and is negotiated: the two parties discuss the terms, recurrence, or even the equipment of employees … During these three weeks of January when telework is made compulsory, this is no longer negotiation but the obligation which takes precedence. “Teleworking is now constrained, so it is the administration that will determine its needs itself. It will be very hard for the agents to show that the assessment given by their manager is not the right one ”. According to the lawyer, judges generally tend to agree with administrations and leave them free to organize.
Civil servants can also turn to their joint administrative commission, a social dialogue body representing staff. This type of committee decides on matters relating to the careers of agents, and can therefore be referred to officials who are refused teleworking. “The situation will be presented to the commission, which will issue an opinion and play its role of control body”, describes Marie Cochereau. It should be noted that the opinions of the joint administrative commissions can serve as evidence if an appeal is made to the administrative judge, but that they cannot force the administration to change its decisions relating to teleworking. “These committees make it possible above all to inform the staff representatives of the situations, and possibly to propose actions and dialogues with the administration”, adds the lawyer.
The principle of equal treatment at work
Finally, employees or civil servants are entitled to attack their employer if they suffer what is called “unequal treatment”, because the same rules must apply to employees who are in the same situation. “If an employee notices that one of his colleagues benefits from more days of teleworking, while the working and employment conditions are identical, he can put forward a breach of equal treatment”, explains Audrey Pascal. The case will then be brought before the industrial tribunal. On the other hand, it is possible that within the same company, some positions are considered to be teleworkable and others not. A different number of teleworking days granted will therefore not be considered as unequal treatment. “If teleworking is not required by law by the legislator, it is because it is done in a local context. It is only the employer, by dialoguing with the CSE, who can define the teleworking positions ”, concludes Corinne Metzger.
>> Find our podcast series on teleworking, its good and bad sides
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