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The choice of personal residence of the employee

personal residence of the employee

© CYBEVASION This is a subject that is coming back to the fore with the rise of teleworking. Remember that all employees have the right to choose their place of habitual residence, a principle guaranteed by Article 8 of the European Convention on Human Rights. If a residence clause and/or a mobility clause can be contractualized between the parties, it is on the condition however that such clauses are "essential to the protection of the legitimate interests of the employer" and "proportionate to the aim sought » depending on the job held by the employee. Given the development of teleworking, some employees, tempted by a more pleasant and less expensive living environment, have been able to settle far from the big cities and their place of work. This desertion from the big cities can generate a significant cost for the employer who is responsible for paying the employees concerned the transport costs between home and work. It will be recalled that article 3261-2 of the Labor Code provides that the employer must bear 50% of the costs of the cost of subscription tickets taken out by his employees for travel between their usual residence and their place of work, accomplished by means of public transport, people or public bicycle rental services. The Paris court recalled it in a decision of July 5, 2022: Faced with the increase in the number of employees fixing their residence in the provinces, a Parisian company had set a criterion of remoteness (less than 4 hours per day round trip ) for the reimbursement of transport costs between the habitual residence and the place of work. After noting that this condition would in all cases come up against the freedom of employees to set up their domicile at the place of their choice pursuant to Article 8 of the European Convention on Human Rights, the court sentenced the employer to respect the obligation to reimburse transport costs without distinction due to the distance from the usual residence of the employees.

TJ Paris du 5-7-2022 n° 22/04735, CSE de l'UES Natixis investment managers c/ Sté Natixis investment managers


But in its judgment of March 10, 2022, the Versailles Court of Appeal shed another light on the question of the distance between the employee's personal residence and his place of work: An employer had expressed his disagreement to an employee who had moved 450 km from his place of work. The employee having refused to return to live near the company, he had been dismissed for misconduct. However, the Court of Appeal followed the employer's argument, which highlighted its obligation to ensure the safety and protection of the health of its employee and its obligation also to ensure respect for daily rest and the balance between family life and work within the framework of the fixed-days agreement to which the employee was subject. A distance of 450 km between home and work could not meet these two requirements.

Security therefore took precedence over the fundamental freedom to choose one's domicile.


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