On 23 November 2022, the French Court of Cassation decided that, under certain conditions, the time mobile workers spend travelling from home to work and work to home may be considered actual work time. In this case, the Court overturned the previous case-law by respecting the primacy of European law over French law. Its decision was made bearing in mind the Court of Justice of the European Union (CJEU) case-law and European Parliament and Council of the European Union Directive 2003/88/ CE of 4 November 2003.
• European Law
Regarding Europe, Directive 2003/88/CE of 4 November 2003 concerning certain aspects of the organisation of working time obliges European Union Member States to provide minimum guarantees to all workers in respect of the duration of work and rest.
In its judgement of 10 September 2015 (1), the CJEU ruled that Article 2 point 1 of the directive relative to certain aspects of the organisation of working time must be interpreted in the following fashion:
“When workers have no fixed or habitual place of work, the daily journeys they make between their homes and the first and last clients of the day, as defined by the employer, constitute working time.”
In the case that led to the aforementioned judgement, the CJEU ruled that a worker must be considered as being at work during his journeys when such journeys are related to such worker not having a fixed or habitual place of work, and that the place of work of such worker may not be reduced to where he physically carries out his activities or duties on a client’s or employer’s premises.
• French Law
In principle, the journey between home and work is not considered actual work time
In principle, travel time between an employee’s home and his place of work is not considered actual work time (2). It is therefore not compensated as such by the employer.
On the other hand, when the duration of travel time spent by an employee to reach his place of work is greater than the usual travel time between his home and the usual place of work, he must receive consideration for this, either in the form of rest time or financial compensation, even if it is not actual work.
Such compensation, mostly flat rate, may be fixed by a company or establishment agreement, or failing that, by a sector-specific agreement (3). If there is no recognised agreement, the employer may establish one unilaterally after having consulted the company’s Social and Economic Committee (4).
In 2018 (5), in the case of a mobile product support technician who applied for a salary adjustment to take into account overtime worked, the Court of Cassation ruled that according to Article L.3121-4 of the French Labour Code :
– On the one hand, time devoted by mobile employees to their journeys between several sites within one working day where they physically carry out work is paid as actual work time.
– On the other hand, the daily journeys between their homes and the premises of their first and last clients do not constitute actual work time and are therefore not compensated as such. On the other hand, compensation for such journeys must be provided when they take longer than the usual journey time.
To establish whether or not such a journey is in excess of the normal journey time for a mobile employee (6), the Court of Cassation ruled that the employer must take into account the journey between the employee’s home and the agency the employee is attached to, and not the journey between the employee’s home and the client to whose premises the employee travels the most often, which is used as a reference. The Court of Cassation stipulated the condition that this agency must be at a reasonable distance from the employee’s home, so that the journey time established would be equivalent to the normal journey time between the home and the usual workplace of an employee in the region concerned (7).
• The Court of Cassation’s choice to modify its case-law
On 23 November 2022, the Court of Cassation chose to modify its case-law.
Taking into consideration European Union law, the Court of Cassation took into account the constraints employees were actually subject to in order to establish whether mobile workers’ journey times constituted actual work time.
In this case, whilst driving between one establishment and another, the employee had to be able to use his work telephone and vehicle integrated hands-free kit to set up appointments, make and receive calls to or from various contacts, clients, the sales director, assistants, and technicians, and perform his duties as a mobile “technical sales representative“. The employee only visited the company head office occasionally and had a company car to visit the company’s clients located around 7 départements in the Grand-Ouest region.
In its judgement of 23 November 2022, the Labour Division ruled that when the duration of the journeys carried out by a mobile employee between his home and the premises of the first and last clients correspond to the legal definition of actual work time (8), such travel time does not fall within the scope of Article L. 3121-4 of the French Labour Code, which establishes the framework for professional travel to reach the place where the work contract is performed.
Therefore, henceforth, in the event of a dispute, the judge will have to ascertain whether, during the journey time, the mobile employee must remain at the employer’s disposal and comply with his orders without being able to attend to personal matters.
If so, this journey time must be taken into consideration as effective work time, in particular to calculate overtime worked.
If not, the mobile employee may only claim financial compensation or compensatory rest provided for under Article L.3121-4 of the French Labour Code when he exceeds the normal journey time between his home and his usual place of work.
(1) CJEU 10-9-2015 aff. 266/14, Federacion de Servicios Privados del Sindicato Comisiones Obrera.
(2) Article L. 3121-4 of the French Labour Code.
(3) Article L. 3121-7 of the French Labour Code.
(4) Article L. 3121-8 of the French Labour Code.
(5) Cass. soc. 30-5-2018 n° 16-20.634.
(6) Employees who work in clients’ establishments.
(7) Cass. soc. 30 March 2022, n° 20-17230.
(8) Art. L. 3121-1 of French Labour Code.