Change of workplace – towards a more flexible definition of the geographical area?

In a noteworthy decision handed down on January 24, 2024 (Cour de cassation, civil, Social Division, January 24, 2024, 22-19.752), the French Supreme Court set out new criteria for assessing the notion of “geographical sector”.

• The current situation regarding changes to the place of work

Unless the contract provides for a mobility clause, and in the absence of a clear and precise contractual or conventional clause stipulating that the employee will carry out his duties exclusively at this location, a change of workplace does not necessarily constitute a modification of the employment contract requiring the employee’s agreement(1).

A change of workplace only constitutes a modification of the contract if the employee moves to another geographical area.

This raises the question of the definition of the geographical sector.

Although the Cour de cassation itself defined this concept in 1998, it gave no definition of it, simply referring to the sovereign assessment of the trial judges, requiring only that this assessment of the identity of the geographical sector be based on objective factors.

While in practice this may have led the High Court to validate contradictory decisions in similar cases, thus rendering the notion of the geographical sector uncertain, “classic” criteria are nevertheless emerging from the case law:

– employment basin identity

– distance between old and new workplace

– accessibility of the workplace (ease of travel, public transport network, road network and traffic conditions): in this respect, the existence of direct links between the two sites enables judges to deduce that they are located in the same geographical area.

It should be noted that judges often apply a combination of these different criteria to assess the identity or otherwise of the geographical sector.

• On the application of new criteria by the Cour de cassation in its January 24, 2024 ruling

» The facts

In this 1st case, the employee had been hired as an order picker/dock agent by ACR Logistics France with effect from March 16, 2005. The employment contract had been transferred to ID Logisitics France with effect from November 1, 2013.

By letter dated November 29, 2013, the employee had been informed that her place of work was to be transferred to another commune, 35 kilometers from her usual place of work, by April 2014 at the latest.

She was dismissed for gross misconduct on May 22, 2014 due to her refusal to integrate her new workplace.

The Aix-en-Provence Court of Appeal ruled that the dismissal was without real or serious cause, considering that the two sites were not part of the same geographical area.

“The Cour de cassation validates the singular assessment criteria used by the trial judges.

In support of its appeal, the employer argued that the two sites were located in the same employment basin and therefore in the same geographical area, since :

– a distance of only 35 kilometers separated the two sites;

– the distance between the two sites by car was only 36 minutes;

– both sites belonged to the same Var department (83), and were under the authority of the same Var Chamber of Commerce and Industry;

– the two cities were both linked by major roads and motorways, including an expressway.

The appeal judges, on the other hand, took the view that the two sites did not belong to the same employment basin, on the following grounds:

– the two towns are 35 kilometers apart and are not located in the same employment basin;

– in view of working hours, it is clear that carpooling is difficult to set up;

– the employer has not produced any evidence to show that public transport is easily accessible between the two communes during the employee’s working hours; – moreover, the use of a private vehicle, in terms of fatigue and financial costs, generates additional constraints due to the hours and distance involved, which modify the terms of the contract.

The Cour de cassation validated the assessment of the trial judges in the following terms:

“In the light of its findings concerning the distance between the two sites and the means of transport serving them, the Court of Appeal, which noted that they were not part of the same geographical area, correctly deduced, leaving aside the over-abundant reasons criticized by the first two branches of the plea, that the employer had committed a contractual fault by imposing a new place of assignment on the employee and could not reproach her for her refusal to join the site to which it had decided to assign her.”

The Cour de cassation thus validates the new criteria used by the Cour d’appel in assessing the identity of the geographical sector, namely :

– the possibility of carpooling;

– the fatigue and financial costs generated by the use of a personal vehicle due to working hours and distance, these additional constraints modifying, according to the judges, the terms of the contract.

While the objectivity of such criteria may be questionable (since the assessment of fatigue and financial costs is a priori specific to each employee, and therefore subjective), the scope of this unpublished ruling remains to be clarified.

We will therefore be watching future rulings on this subject with interest.

In the meantime, employers are urged to adopt the utmost rigor when drafting contractual clauses relating to the workplace.

(1) provided that the nature of the job does not in itself imply a certain degree of geographical mobility, or that the change of workplace is not of an exceptional nature.