What’s new in remote work and mutual agreed termination (“rupture conventionnelle”)?

Signing of a framework agreement on cross-border teleworking to facilitate affiliation to the social security scheme of the state of employment

On 30 June 2023, France ratified a Multilateral Framework Agreement, which came into force on 1 July this year and is applicable in countries that are part of the European Union and the European Economic Area and which have themselves ratified the agreement. To date, 19 countries have ratified this Framework agreement, including Belgium, Luxembourg, Germany, Switzerland, Spain and Portugal.

Under the terms of this Framework Agreement, a habitual teleworker (whose definition is set out in the Framework Agreement) who teleworks less than 50% of his or her working time in the State of residence, and therefore more than 50% of his or her working time in the State in which his or her employer has its registered office or place of business, may remain affiliated to the social security scheme applicable in the State of employment.

This is a derogation from Regulation EC/987/2009, Article 14(8) of which lays down the principle of affiliation to the social security scheme of the country in which the cross-border worker, whether teleworking or not, carries out a substantial part of his activity, with a threshold of 25% of working time. Therefore, beyond 25% of activity in the State of residence, the cross-border worker must be affiliated to the social security scheme of the place of residence and not of employment.

The Framework Agreement therefore makes it possible to extend the derogations put in place during the Covid-19 health crisis. This derogation remains optional. If the parties wish to activate this option, the employer must request an A1 form from the authorities in his country, and prove that the derogation is in the worker's interest (proof of the employee’s agreement is sufficient in principle).

It will apply for five years, during which time the European regulations on the coordination of social security schemes should be amended, with an initial assessment after an initial period of 6 months

Reference in the agreement or charter to telework for family caregivers

Law no. 2023-622 of 19 July 2023 aimed at strengthening the protection of families of children suffering from an illness or disability or who have been the victim of a particularly serious accident has amended article L. 1222-9 of the French Labour Code.

From now on, it is stipulated that the collective agreement, or alternatively the charter adopted within the company relating to telework, must specify the terms and conditions of access to telework for employees helping a child, parent or close relative in a teleworking organisation. Such a requirement had already been laid down for disabled employees and pregnant employees.

In practice, however, this article does not specify the arrangements to be adopted.

There are no penalties for failing to include this information either. Nevertheless, an employee in a caring situation who is refused access to teleworking may, in the absence of such details, ask the employer to justify his refusal, and where appropriate claim damages, if he can demonstrate that he has suffered prejudice as a result of an unjustified refusal.

Recognition of the occupational nature of an accident occurring during telework

Pursuant to Article L. 1222-9 of the French Labour Code, an accident occurring at the place where telework is carried out during the teleworker's professional activity is presumed to be an occupational accident. In the absence of any control by the employer over the place where telework is carried out, it is easy to fear that accidents at work might be systematically recognized.

However, two rulings provide a strict framework for assessing the professional nature of an accident that occurs during teleworking.

In the first case (St Denis de la Réunion Court of Appeal, 4 May 2023, no. 22/00884), a teleworking employee lost his Internet connection. He went outside his home to look for the cause of the computer breakdown, and was injured when a pole fell. The Court of Appeal found that the employee had deliberately interrupted his work to investigate the cause of the interruption to Internet access, which was neither required by his employer nor within his duties. Furthermore, he was no longer at his "place of work".

In the second case ( Amiens Court of Appeal, 15 June 2023, no. 22/00474), an employee finished her working day at 4.01pm. At 4.02pm, leaving the basement space where she was teleworking, she fell down the stairs. Here again, the occupational nature of the accident was not recognized. The Court of Appeal considered that at 4.02pm, the employee had finished her working day, and was therefore no longer under the employer's subordination.

Although these rulings may seem severe, they do mark a clearly defined boundary between the moment when the employee teleworks under the employer's authority, and the moment when the employee leaves that authority to resume his or her personal life.

These decisions can still be challenged by the French Supreme Court. To be continued.

New social security regime for mutual agreed termination indemnity came into force on 1 September 2023

From 1 September 2023, the 20% flat-rate social security contribution applicable to specific indemnities for termination by agreement will be replaced by a 30% employer's contribution payable on the portion exempt from social security contributions.

This change, introduced by article 4 of Law no. 2023-270 of 14 April 2023 on the rectifying financing of social security for 2023, and incorporated into the BOSS, concerns all contractual terminations taking effect from 1 September 2023, which therefore implies procedures commenced before this date.

It should be noted that this law also introduces other changes, insofar as it abolishes the distinction with employees eligible for a retirement pension, with regard solely to liability to social security contributions. Therefore, irrespective of a retirement entitlement, the compensation remains exempt from social security contributions and CSG/CRDS within the usual limits. 

However, this distinction remains in force for tax purposes. Therefore, the specific severance pay remains fully subject to income tax for employees entitled to a retirement pension.

Authored by Alexandra Tuil and Baptiste Camus.