Employment Law in France.
In the wake of the COVID-19 pandemic, remote working has become a common practice. However, when it comes to working remotely from abroad, legal complexities arise. A recent judgment by the Paris labor court (August 1, 2024, n° 21/06451) has confirmed that an employee working remotely from abroad without their employer’s express authorization can be dismissed for gross misconduct. This ruling underscores the importance of regulating remote work, especially when it involves international locations.
The Facts of the Case
In this case, a permanent employee hired as a flow and compliance analyst in May 2019 received temporary authorization to work remotely from Canada in 2020 after her return flight was canceled following her vacation. Wanting to settle permanently in Canada, she later requested a mutual termination of her contract, which was denied by her employer. The employee then notified her employer of her intention to resign, effective December 31, 2020.
Despite her resignation notice, she continued remote working from Canada, requesting an extension until mid-February 2021 due to financial difficulties. However, the employer did not approve this request. During the pandemic, the company had allowed temporary remote work from abroad, but only if the employee was located within two hours of the Paris time zone, a condition that did not apply to her situation.
By March 2021, the employee revealed to her employer that she was still in Canada and requested a new arrangement involving adjusted working hours. The employer denied this request and asked her to return to the office in France. When she failed to comply, she was dismissed for gross misconduct.
The Labor Court’s Ruling
The Paris labor court upheld the dismissal for gross misconduct based on two key considerations:
- Risk to the Employer:
The employee’s work in Canada occurred without the necessary authorizations from Canadian authorities, exposing the employer to potential legal sanctions under foreign labor laws. Additionally, the employer faced risks of non-compliance with the General Data Protection Regulation (GDPR), as it was unable to ensure proper data security with the employee working outside the European Union (EU). - Contractual Breaches by the Employee:
The employee had not obtained the explicit authorization required to continue working remotely from abroad and failed to disclose her remote location in a transparent manner. Furthermore, she did not adhere to the employer’s request to return to the office in France.
Risks for the Employer
This case illustrates the legal and administrative risks an employer may face when allowing remote work from abroad without appropriate measures in place. Key risks include:
- Foreign Labor Laws:
Many countries, such as Canada, require specific authorizations for foreign workers, even for remote work. Without these authorizations, employers may be subject to legal sanctions, fines, or penalties for non-compliance with local employment regulations. - GDPR Non-Compliance:
Remote work outside the European Union can create data protection issues under the GDPR. Any transfer of personal data outside the EU must be governed by strict regulations, such as Standard Contractual Clauses (SCCs) or other adequate safeguards. The employer, unaware of the employee’s location, was unable to implement necessary compliance measures to protect personal data and could therefore be liable for GDPR breaches.
Scope of the Decision
Although this ruling focuses on a specific instance of long-term remote work from outside the EU, it raises significant concerns for all employers managing remote work arrangements. The decision underscores two main legal points:
- Remote Work Without Authorization:
If an employee works from abroad without prior authorization, this can constitute grounds for gross misconduct and justify dismissal. - Legal and Compliance Risks:
Employers face substantial risks, both from non-compliance with foreign labor laws and from failure to meet international regulations, particularly regarding data protection.
Recommendations for Employers
To avoid such disputes and minimize risks, employers should establish clear and formal remote work policies. These policies should be well-documented in either the internal rules or employment contracts, and should cover the following points:
- Authorized Locations:
Clearly state where remote work is permitted (e.g., home, co-working spaces, or third-party offices). - Notification Obligations:
Require employees to inform the employer of their remote work location, particularly when working from abroad. - Specific Conditions for Remote Work Abroad:
Define specific conditions for employees wishing to work remotely from outside the home country, including authorized countries, time zones, and duration of remote work. - Return to Office Procedures:
Outline the procedures and timelines for returning to the office, ensuring employees are aware of the expectations if the employer requests a return to on-site work.
Conclusion
The Paris labor court’s decision highlights the importance of regulating remote work, especially when it involves working from abroad. Employers must take proactive steps to formalize remote work arrangements and ensure compliance with local labor laws and GDPR requirements. By adopting clear policies that address these issues, employers can mitigate legal risks and ensure smoother remote work operations, ultimately protecting the company’s interests.
FAQ
- Can an employee be dismissed for working remotely from abroad without permission?
Yes, as demonstrated in this case, an employee working remotely from abroad without explicit authorization from their employer may face dismissal for gross misconduct. - What are the legal risks for an employer when an employee works abroad?
Employers may be exposed to sanctions for non-compliance with foreign labor laws, as well as risks related to data protection under the GDPR if remote work is performed outside the EU without adequate safeguards.