The mobility clause: no infringement of the employee’s fundamental right to personal and family life

The mobility clause, as its name suggests, is a clause inserted in the employee’s employment contract, under which the latter accepts a change in his or her place of work.

It is nonetheless subject to a validity check, as judges verify that the geographical area is precisely defined, and that it does not give the employer the power to unilaterally extend its scope.

In this case, an employee was hired as a senior engineer. Her employment contract included a mobility clause, which the employer subsequently decided to implement.

To this end, he informed the employee of his future transfer to Cuba or Nigeria.

After refusing these two transfer offers, the employee was dismissed.

He therefore appealed to the industrial tribunal for damages for dismissal without real and serious cause.

According to the Court of Appeal, the employee’s dismissal was indeed based on real and serious grounds.

The judges mainly held that the various assignment proposals were serious and could not be considered unfair, even though the employee was aware that the company had no immediate specific needs in countries other than Cuba, England on a local contract or Nigeria and Algeria.

They concluded in the following terms: ” the employee does not prove that the employer acted in bad faith or abused the mobility clause, nor does he demonstrate that his dismissal was, in reality, linked to the company’s wish to let him go due to a difficult economic situation and a desire to reduce the number of expatriate employees

The employee appealed to the French Supreme Court.

The Court of Cassation upheld the latter’s request, censuring the decision handed down by the trial judges.

Under article L.1121-1 of the French Labor Code, she reiterates the famous principle that no one may restrict the rights of individuals or individual and collective freedoms in a way that is neither justified by the nature of the task at hand nor proportionate to the aim pursued.

In the High Court’s view, the trial judges should have verified that the implementation of the mobility clause did not infringe the employee’s right to a personal and family life, and that such infringement could be justified by the task to be performed and was proportionate to the aim pursued.

The trial judges were therefore wrong to declare that the dismissal was based on real and serious grounds.

The French Supreme Court (Cour de cassation) remains true to its case law, repeating the exact terms of a decision handed down on January 13, 2009 (Cass. Soc. 13 janv. 2009, 06-45.562, Publié au bulletin).

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