May
17
France - COVID- 19 - French Labour law - Telework and deconfinement: what protection for employees against moral harassment? CHHUM AVOCATS (Paris, Nantes, Lille)

One of the flagship measures of the plan to fight the spread of the Covid-19 virus is to impose the implementation of telework for all jobs that allow it. (See our previous article on the subject)

Thus, since March 16, 2020, a considerable proportion of French employees have been placed in telework, whereas in most cases this form of organization has never been implemented before.

With this imposed generalization of teleworking, it seems imperative to wonder about the articulation of this form of work with the rules relating to protection against moral harassment.

Indeed, although outside the company's premises and therefore outside the "physical" sphere of influence of its employer, the teleworker is not therefore immune to a possible situation of psychological harassment.

On the contrary, teleworking can sometimes lead to amplifying the behaviors constituting moral harassment.

Thus, since March 16, 2020, 5.1 million employees would be teleworking [1] while in most cases, this form of organization had never been implemented before.

With this imposed generalization of teleworking, it seems imperative to wonder about the articulation of this form of work with the rules relating to protection against moral harassment.

Indeed, although outside the company's premises and therefore outside the "physical" sphere of influence of its employer, the teleworker is not therefore immune to a possible situation of psychological harassment.

On the contrary, teleworking can sometimes lead to amplifying the behaviors constituting moral harassment.

1) Telework (Télétravail) and work overload (surcharge de travail).

As the culture of presenteeism is particularly anchored in the French working world (and particularly in Paris and Ile de France), teleworking is not always well experienced by either the employer or the employee and can prove to be a source of difficulties. , especially in terms of workload.

Not only does telework make it more difficult to assess the workload of the employee, but it often also generates a very special situation in which the employer has the impression that his employee is not working sufficiently while the employee, moved by a sort of feeling of guilt, tries to do more and more to compensate for his "absence".

Thus, a DARES study of November 7, 2019 conducted among executives in the private sector revealed that with equivalent responsibilities, the weekly working time was increased among teleworkers [2].

We thus see that the working hours of executives in teleworking are on average 43 hours per week against 42.4 hours for those who do not telework and that the former declare twice as often to work weeks of more than 50 hours.

However, telework does not relieve the employer of his obligations in terms of workload and hours of work.

The national interprofessional agreement on telework of July 19, 2005 expressly specifies, in its article 9, that the employer remains held, with regard to teleworkers, of the respect of the legislation relating to the hours of work and especially the duration maximum work and rest times [3].

This same article recalls that the workload, the production standards and the performance criteria required of the teleworker must be equivalent to those of employees in a comparable situation working on the premises of the company.

The workload may also have to be adapted to take into account the particularities of teleworking imposed to combat the spread of Covid-19.

Indeed, very often, the employee does not have the conditions required to perform his work at home (isolated room, computer equipment etc.).

What is more, since the schools have also been closed, it must be taken into account that employees who are parents must also take care of their children at home (and even sometimes provide schooling at home), which can s '' prove difficult to combine with a full-time working day.

2) Telework and right to disconnect (droit à la déconnexion) (article 2242-17 7 ° of the labor code).

The aforementioned study by DARES highlighted the fact that employees in telework are much more likely to work atypical hours (evening after 8 p.m. or on weekends) and less predictable than employees present in the premises of the business.

However, the right to disconnect [4] must benefit all employees, including and even particularly, employees in telework (Cf. our article: Right to disconnect employees from January 1, 2017: how to put it in place? By Frédéric Chhum, Lawyer.).

 

The mechanism for setting the availability time slots is to prevent the teleworker from being forced to remain permanently reachable by his employer (Cf. our article: Telework and Covid 19: employees, what are your rights and obligations? By Frédéric Chhum and Marilou Ollivier, Lawyers.)

However, the right to disconnect goes even further by requiring the company to set up devices to regulate the use of digital tools, in order to ensure compliance with rest and leave times as well as personal and family life.

3) Telework and managerial moral harassment (harcèlement moral)

In addition, teleworking can generate conflicts between the employee and his management.

It is indeed not uncommon for telework to reveal a glaring lack of confidence which can, for example, lead certain managers to exert increased pressure on their subordinates or to disparage their work simply because they find it difficult to imagine that those - they work with the same seriousness from their home.

What's more, "remote" communication is always more complicated and can lead to misunderstandings on both sides.

However, the employee must never be the victim of acts constituting moral harassment on the part of his managers (unjustified reproaches, humiliations, denigration, pressures etc.) [5].

4) Telework and isolated / sidelined the employee (mise à l’écart).

In principle, apart from the situation of combating the spread of the Covid-19 virus, teleworking can only be done on a voluntary basis.

Failing that, the imposition of telework can constitute an isolation technique and therefore an act likely to receive the qualification of moral harassment [6].

If in the current context, the question of the legitimacy of placement in telework should not arise, the fact remains that it should not have the effect of sidelining any employee.

They must always be provided with work, be able to be in touch with their hierarchy, benefit from the support necessary for the accomplishment of their missions, etc.

***

If the employee in telework is victim of one or more of the aforementioned actions, he can seize the Labor Court and invoke a situation of moral harassment in order to be granted damages in compensation for the damage he has suffered.

 

Notes :

[1] Les Echos COVID 19 - Les Grands Oubliés du Télétravail.

[2] Etude de la DARES « Le télétravail permet-il d’améliorer les conditions de travail des cadres ? », 7 novembre 2019.

[3] Article 9 de l’accord national interprofessionnel du 19 juillet 2005 relatif au télétravail.

[4] Article L. 2242-17 du Code du travail.

[5] Article 1152-1 du code du travail.

[6Cass. crim. 19 février 2019, n°18-83268.

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

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