When an employee works from home at the request of the employer, the latter must pay him occupation compensation. Walter France's Social working group comments on a judgment of the Court of Cassation *.
The Covid-19 pandemic has forced many employees to work from home to limit contamination in the workplace.. Labor law has had to adapt to these new requirements. Nevertheless, remember that the employee has the right, even at the workplace and during working time, respect for the privacy of one’s private life **. Occupation of one's home is an interference in the employee's private life. The employer is therefore prohibited from interfering in the emotional life of, marital or family relationship of an employee or to intervene in their lifestyle or consumption choices, unless there is a legitimate and proportionate restriction***. Or, l’occupation, at the request of the employer, from the employee's home for professional purposes constitutes an interference in the employee's private life and does not enter into the general scheme of the employment contract. If the employee, who is neither required to agree to work at home nor to install their work files there, accedes to his employer's request, the latter must compensate him for this particular subjection as well as the costs generated by the professional occupation of the home.
Occupancy compensation
The social chamber had already ruled on the question of private home occupation compensation, and its social treatment. She had specified that the occupation compensation, when it is due, does not have the nature of a salary and is not included in the allowance for professional expenses. The Court of Cassation also recalled that when professional premises are not actually made available to the employee, the latter is entitled to compensation for the occupation of his home for professional purposes, in addition to reimbursement of costs incurred by the latter in carrying out his work. On the contrary, this compensation is not due when the employer gives the employee the free choice to work either in professional premises, either at his home ****.
If the employee has no choice, compensation is due
In June 2021, a new case had raised the question of the employment compensation owed or not by the employer to a traveling salesperson. The Court of Appeal dismissed an employee's request for compensation for the professional occupation of the personal home, holding that the employee's work was itinerant., that all administrative and reporting tasks were carried out in the field, between each visit, using the iPad provided to the employee, that the production of a photo and a plan on which an office room appeared was not sufficient to justify the need for the employee to occupy a room in his home to carry out his work; finally that the employee did not justify any particular constraints requiring him to dedicate part of his home to professional use. But the Court of Cassation held, as for her, that by positioning oneself thus, without investigating whether or not the employer had made professional premises available to the employee, by leaving the employee free to choose whether or not to work in their private home, the Court had not given a legal basis for its decision. So, an employee can claim compensation for the occupation of his home for professional purposes as long as no professional premises are made available to him by the employer, it does not matter if the employee's functions remain itinerant.
* Court of Cassation, Social chamber, June 30, 2021 No. 19-23.537).
** Court of Cassation, Social chamber, October 2, 2001, n° 99-42.942 FS-PBRI.
*** Court of Cassation, Social chamber, January 13, 2009, n° 07-43.282 FS-PBR.**** Court of Cassation, Social chamber, 27 mars 2019, n° 17-21.014.
