Facts:
Due to the pandemic, SA Enedis, a subsidiary of EDF, set up a “business continuity plan” on March 12, 2020, enabling a minimum service to be put in place to ensure the supply of electricity and the safety of goods and people. Other agents have been placed in telecommuting.
As part of this plan, a collective agreement signed on March 12, 2020 provided for a “closed canteen allowance” for the benefit of employees working on site and usually having lunch in an outside restaurant, to the exclusion of employees placed on telecommuting.
A trade union brought an action for interim relief against the company, asking the Court to order payment of the allowance to all employees during the business continuity plan, for each day worked since March 16, 2020. On the one hand, they argue that the criterion of employee location is neither objective nor relevant, and cannot justify a difference in treatment.
In addition, they argue that remote workers incur additional meal costs to which they are not normally exposed, which is contrary to the public policy provisions of Article L. 4122-2 of the French Labor Code, according to which “Measures taken in the field of health and safety at work must not entail any financial burden for workers.”
The Court of Appeal ruled that telecommuting employees and on-site employees were in objectively different situations due to their place of work. As the purpose of the allowance is to cover professional expenses for outside catering to which telecommuting employees are not exposed, telecommuters cannot claim payment of the allowance.
The union appealed to the French Supreme Court.
French Supreme Court’s response:
The Supreme Court approves and reiterates the reasoning of the Court of Appeal: “Firstly, since the purpose of the ‘closed canteen’ allowance was to compensate for the loss, as a result of the pandemic, of the company catering service offered to employees present on the company’s sites, the Court of Appeal rightly decided that telecommuting employees were not in the same situation as those who, having to work on site, were deprived of this service.Secondly, since telecommuting employees are not required to use the company restaurant, the Court of Appeal correctly deduced that the administrative closure of the restaurant due to the pandemic did not entail any additional financial burden for the telecommuters”.
As a reminder, the general principle of equal treatment applies to all employees, including teleworkers. This means that employees in the same situation with regard to the benefit in question must be treated in the same way. If the employer makes a difference in treatment when employees are in the same situation, this difference in treatment must be justified by objective reasons.
The Advocate General’s opinion concluded that the case should be dismissed. In his opinion, the closure of the company restaurant applied to all the company’s employees, “regardless of how they work”.
The French Supreme Court disagreed. The purpose of the allowance was to compensate for the difficulties encountered by employees continuing to work on site without any means of eating. This situation was not suffered by telecommuting employees.
We welcome this decision, which seems consistent with previous case law.
However, not all questions of equal treatment of telecommuting employees have yet been resolved, given the wording of the applicable texts, which seem to establish a principle of absolute equality between telecommuters and other employees, cf. article L1222-9 of the French Labor Code and the ANI of 2020.
We must remain extremely vigilant on these issues.