It seems that the Cour de Cassation (France’s equivalent to the Supreme Court of the United States) occasionally throws employers a bone when determining their rights to make management decisions regarding their workforces. The Cour has recently confirmed that not only can French employees be dismissed for refusing a transfer when they have a valid mobility clause in their employment contracts, but they can be dismissed without the notice indemnity if they refuse to serve out their termination notice period in the new location.
It is conventional wisdom that courts strictly construe clauses in French contracts that are for the benefit of employees against the employer, but that some clauses that benefit the employer at the expense of the employee can be little more than window-dressing. One such clause that has been difficult to enforce is the mobility clause. When an employer wants to transfer an employee to a different worksite, the employee can dig in his or her heels, and the labor court may indeed look for reasons to side with the employee. This is because ordinarily in France, material changes cannot be made to an employee’s terms and conditions of employment without the employee’s agreement, and a mobility clause seems to require an employee to agree to a very material change with little or no detail. Moreover, requests to change worksites can occur at any time—causing the employee and his or her whole family to undergo a major upheaval.
An example of the resistance to forcing employees to honor mobility clauses can be found in the case of an employee who was dismissed when he refused to move from Paris to a small town 83 kilometers outside the city. Because the employer could not guarantee that the employee’s children would have the same living conditions and educational opportunities that they had in Paris, the Cour de Cassation sided with the employee in finding that he had been wrongfully dismissed for refusing the transfer (Cass. soc. 23 mars 2011 09-69127).
However, in this most recent case addressing mobility clauses, an employee working in Antibes (in the south of France) was asked to transfer to Asnières (near Paris). He objected to the transfer, and, as a result, his employment contract was terminated. The employee got his severance package except for the notice indemnity. The employer claimed that by refusing to transfer, he was not willing to work during the notice period, therefore the employer should not be required to pay for it. Both the labor court and the court of appeals upheld the right of the employer to require the transfer pursuant to the mobility clause but held that the employer did have to pay for the notice period, since the employee was willing to work out his notice in his original location in Antibes.
The mobility clause read as follows (translated from the original French):
Mr. Yannick X “is attached to the Paris establishment of Ascom Monetel. His workplace is the Agency of Nice […]. However, for reasons concerning the organization and functioning of the business, the Company may have to change the workplace of Mr. Yannick X, who can then be transferred to any of the Ascom Monetel establishments located in France.”
The company notified the employee that he was going to be transferred because the company was seeking to be certified ISO 9001, and this required his physical presence in Asnières, as the work could not be done remotely. When he refused, his contract was terminated. When he refused to work out his notice at the new site, the company refused to pay the notice period indemnity.
France’s highest court overturned the court of appeals’s ruling, which had held that the employer could legitimately require the employee to perform his notice period in the new place of work. In light of his mobility clause, and the reasonable justification for requiring the move, he could not refuse to transfer and therefore had no right to payment of the notice indemnity. This decision makes it clear that a mobility clause can have a strict binding effect on an employee, so long as it is justified by the nature of the work and proportionate to the aim sought. (Cass. soc. 31 mars 2016 14-19711).
Other cases have helped to define the requirements of an enforceable mobility clause. In order for a mobility clause to be enforceable, it must specify the geographical area in which the transfer may occur (Cass. soc. 9 juillet 2014 13-11906), and the more precise the better. It must be within the same legal entity and not to another member of the corporate group (Cass. soc. 19 mai 2016 14-26577), and the employee must have reasonable notice of the transfer, although the amount of notice necessary is still debatable. It must not require a material change to the employee’s working conditions, including such things as changing a daytime schedule to a night shift or changing the variable remuneration opportunity that might result in lower remuneration overall. In such a case, the employee would have the burden to show the employer was abusing its power. (Cass. soc. 17 septembre 2008 07-42.124)