. Cass. Soc 15 June 2004: The nature of the change of employment must be assessed©© objectively on the basis of the respective situation of the two places of work and not on the basis of the conditions of promotion of the worker from his place of© residence. It must not be based on the employee`s© conditions of transport from home, but on the service with means of transport on each of the sites (old and new workplace); The contract itself may also provide for any modification which, in principle, does not constitute a contractual amendment when it is executed. However, the clause must be based on objective elements beyond the control of the employer. Cass. Soc. 7. July 2004: distance of 20 km between the old and the new workplace (Vail-de-Reuil in Saint-Etienne-du-Rouvray): the change imposed© constitutes a change in the working conditions under the employer`s management power and its refusal by the employee© constitutes a real©and serious©reason for dismissal (no recourse to the mention of the “geographical© area”). In view of recent developments©©in case law, we have found it interesting to clarify the fate of the new jurisprudential rules that make it© possible to distinguish© between changes in the employment contract and changes in working conditions. The reader is invited © to forgive the deliberately synthesized© but very inaccurate©form of the following development, which is essentially intended for lawyers and was©© originally written for law students©of the University© of Paris II as part of their teaching as well as for© the various©lawyers©of our firm. Cass. Soc.
3 June 2003: The indication of the place of work in the employment contract is for information purposes, unless it is stipulated© that the employee© performs© his work exclusively at this place. In the absence of such a clause in the employment contract, the move to the same geographical area©constitutes a mere modification of the working conditions and not a contractual modification. The transfer of the employee to the same general sector© (unless a clause in his contract terminates an exclusive© place of work) is a simple modification of the working conditions imposed on the employee©©. The same applies to occasional or temporary assignments as part©of the employee`s obligations and to©the© implementation of a mobility clause©. In principle, the modification of working conditions does not require the consent of the employee. However, if this simple amendment entails a modification of an essential element of the employment contract, the employer must apply the procedure for amending the employment contract. This is the case, for example, if the change in the employee`s duties results in a loss of responsibility towards him or affects the level of his remuneration. A modification of the employment contract is the change of employment in another geographical area and in the absence of a mobility clause.
However, the modification of the employment contract requires:. Cass. Soc. 22. January 2003: The occasional placement© of a worker outside the geographical area in which he usually works does not constitute a modification of his employment contract, provided that (1) the transfer is justified©by the interest©of the company and (2) that the specificity©© of the functions performed©by the employee implies a certain geographical©©mobility© of the employee©©. © The employee is free to refuse© this change. The employer may decide on a new distribution©or reorganization©©of working time. The essential elements of the employment contract are not legally defined. These include remuneration, qualifications, working hours set out in the contract (see below) and, more generally, the duties of the employee. For example, authorization to dismiss the protected worker may be refused if the modification interferes with the fulfilment of his or her obligations of representation. This is particularly the case if the amendment distances him from the employees he represents.
Employers who wish to change the working conditions of their employees must therefore be particularly vigilant. He must act in good faith, taking into account the situation of the employee and the consequences of this decision for his employment and his rights! In case of doubt about the nature of the change or behavior with regard to the employee`s refusal, the opinion of a labor lawyer is recommended by Cassius Avocats before a decision is made. These four elements of the contract are essential: you need to know how much you work, what type of tasks, where and for how long. The employer may unilaterally decide to modify the working conditions of his employee within the framework of his management power.