Catrina Smith (Moderator). Welcome to the next instalment of our series of videos looking at SMART working arrangements. Our objective in these videos is to provide you with a basic understanding of the legal framework relating to SMART working in Italy, France, Germany and the Netherlands, where we have strong employment law practices.
I would now like to introduce Elodie Grangier. Elodie is a senior associate in our Paris office. She is part of a dedicated employment and labor law team in Paris comprised of five French qualified lawyers and led by partner, Laure Joncour.
Q: Elodie, thank you for joining us today in London. I know that flexible working is not a new topic in France. Please tell us a little about the current options for employers and employees who want to enter into flexible, or SMART, working arrangements and what can we expect in the future?
E: Like Italy, the typical French employment model is grounded in tradition. The classic model for employment in France is one employer, one stable working place, and pre-established and inflexible working days and hours.
However, over the past years, new laws have been implemented to create additional flexibility to allow employers and employees to organize their work schedules a little bit differently from that classic model.
The standard working time for an employee in France is 35 hours a week. Each hour worked over those hours is considered overtime and the employee must be compensated, either by increased salary or additional rest time. French law also limits the length of the working day, to 10 hours, and the length of the working week to 48 hours. There are also minimum daily and weekly rest periods.
However, French law has been allowing for a number of years flexible working arrangements through collective agreements negotiated with unions. For example, it’s possible to negotiate for working time to be calculated on a yearly basis not over the week, allowing employees to work more during certain weeks or months, and less during other periods. In the Summer of 2016, a highly contested law was passed in France, which introduced new flexibility to the classic employment model, known as the El Khomri law. Such law notably provided that employees’ working time can be made on the basis of a period of 3 years, which was not possible before. This is similar to what we heard Attilio explain is also available in Italy.
Q: Does French employment law provide for flexibility measures aiming at specific categories of employees?
E: Yes. One of the most flexible arrangements allowed under French law, since 2000, is one that allows senior employees who are autonomous in determining their time, to work on the basis of a certain number of days over the year and not by the number of hours per week.
This particular scheme has proved tremendous success with employers. According to surveys, around 50 per cent of French executives working in the private sector were subject to this specific modality of work in 2014.
It’s clear that this model is to the advantage of employers, since regulations relating to overtime and the maximum daily and weekly working time don’t apply.
These arrangements have been subject to scrutiny by French courts which require, among other things, that the volume of work and workload of the individuals remain reasonable, and ensure the employees’ health and safety.
Notwithstanding the scrutiny of the courts, France has been subject to substantial criticism by European institutions, which have considered that the monitoring under French law did not sufficiently regulate these arrangements and that this could lead to unreasonable levels of working time.
Since then, the El Khomri law has implemented a “right to disconnect”, allowing employees to be better protected in terms of work-life balance and the right to rest periods.
In practice, however, the right to disconnect will not completely prevent employees from using their phone or computer after working hours or during week-ends and holidays as employers cannot force employees to give up their devices, but it does require employers to alert employers to the existence of the right and to take steps to regulate the use of such devices.
Q: What about part-time contracts, are they allowed without major restrictions and are they popular?
E: Part time employment contracts are allowed in France, and are widely used in some sectors of business, such as the retail sector.
Indeed, according to a recent survey, around 20 per cent of employees in France are employed on the basis of part time contracts.
A number of compulsory provisions apply to part time employment contracts to protect employees. For example, if no working time is specified in the part time employment contract, the relationship will be deemed to be full time employment. The part time contract must indicate the number of hours per week worked, and how these hours are allocated over the week. There is however the ability to change such allocation, provided the employee is notified sufficiently in advance.
French law has also implemented the ability to arrange working time over the month, or even over the year, subject to collective agreement. This has allowed a number of companies to negotiate collective agreements with employees’ unions providing, for example, part time arrangements taking into account employees’ family needs. Under these agreements, employees work on a full time basis during school periods, and are allowed to take days or weeks off during school holidays.
Q: And what about zero hour contracts, are they allowed under French law?
E: No. It is not at all possible in France to enter into this form of contract. These contracts would contravene the basic principle that the employer should provide work to the employee. Although employers have other options, such as fixed term contracts or temporary workers to fill an occasional surge of activity. We don’t expect this to change, at least not in the near future.
However, one area where the French are more flexible is in relation to place of work. This is less regulated in France than in many other countries.
First, mobility clauses are allowed subject to some conditions like limitations on the territory covered by the provision. In addition, French employment law has for a number of years allowed teleworking, which allows employees to work from home.
Teleworkers are identical to other traditional employees and have specific rights, such as the right to ask to work in the company premises at any time. Also, French law has set out a number of provisions in order to avoid teleworkers from being isolated from the workforce.
These smart and flexible working arrangements may be subject to change in the near future. As you may know 2017 is a year of presidential elections in France. So we could see some amendments to the legislation if we see a change of Parliamentary majority. There is also a huge work of rewriting the French Employment Code which started a few months ago and this could also result in changes to the legislation.
Conclusion: Thank you Elodie for that overview. It is clear that we will all have to keep a careful eye on developments in France over the course of 2017.