The Contracting Party refuses to follow and is dismissed for serious misconduct

To May 4, 1999, the change in the work place was an apprehended question of both straightforward manner by employers than employees or paid advisors: to determine whether a worker moving constituted an amendment to the contract of employment, it merely to look at whether or not travel time was elongated. If it was, it was considered that an extension of about half an hour amended the contract of employment. The litigation was then on personal or family circumstances that may mitigate or enhance the rigour of the rule, a young man well and without family are presumed capable of supporting a time longer than a motor disability or a mother with young children age. It was a matter of common sense. The judge was sometimes harsh, sometimes indulgent but, good year, bad year, it knew where it was.

The fateful date of 4 May 1999, the Court of cassation, upsetting the habits, decides that "the change of the place of work must be assessed objectively." Logical decision with its new approach of the amendment of the contract of employment which means that it does the contract when it goes to its essential elements,: salary, the duties and "contractualised" elements, i.e. the points which are so important in the eyes of the signatories of the contract they wanted to emphasize that they were essential. The place of work, as we see it, is not part of the list of which is essential in a contract of employment.

The objective test, it is the geographical area: since 1999, an employee who is transferred within a geographical area cannot rely on the modification of the contract of employment, it must consider that there is a change of working conditions.

Excessive extensions

The debate has therefore changed field: the discussion is now on whether what is a geographic area. It is difficult to give a satisfactory definition but it can be said with certainty that a transfer within a same Department does not change the employment contract unless (CA Versailles, November 28, 1995;) Cass. Soc., March 25, 1998 and most recently, Cass. Soc., 4 Apr. 2006, no. 04 - 43 506).

Clearly, the message does not pass to the employees and they continue to shirk against excessive considered extensions of their home-work trip. Despite the many decisions seem to refer to the Paris region as an area, they resist, as we will see in the case of April 4, 2006.

An accountant was hired in 1990 and his contract of employment indicates that its functions are to Anthony (92). Following a plan of assignment, his contract of employment is taken up by another company that transfers its head office in another city of the Department, at Chaville, approximately 20 kilometres away. The Contracting Party refuses to follow and is dismissed for serious misconduct.

The case will drag because at the time several lawyers launched a counter-attack against the "harmful" effects of the position of the Court of cassation: as what is trusts is "essential", they say, the place of work, which appears in most contracts, is therefore an essential element.

No promise of immutability

Error, said the Court of cassation: in the majority of cases, the indication of a place of work is only a mere information, not a promise of immutability (Cass. Soc., June 3, 2003). A clause in physical inactivity (the opposite of the mobility clause) must be clear and precise.

Our accountant will therefore, as a first step, win on the basis of the address on his letter of employment, then it will lose because of the correction of the Court of cassation. Collecting the record, the Court of appeal of Paris summarizes: the dismissal is justified but the employee had a legitimate ground for refusal, so there is no serious fault. She him allocates therefore notice and termination compensation, most of the damages because the employer acted with bluntness. The Court of cassation confirmed damages but withdrew the notice: since this was a change of working conditions, it is the employee who was foul to not run it on the new place of work, not the employer.