Best practices and legal framework for flex office arrangements in France

While only 14% of French employees were working under a flex office system in 2019,[1] the Covid-19 health crisis became a major global catalyst for companies with regards to the implementation of new ways of working, within their organisation. Flex office – often accompanied by telework - is one of them.

Under a flex office arrangement, employees do not benefit from any dedicated office space. Instead, they are meant to sit wherever they want, in the area that best suits their needs and tasks for the day.

Driven by the desire to lower real estate costs,[2] and respond to the need for flexibility requested by employees, flex office arrangements are currently at the center of human resources strategies.[3]

Reflecting this dynamic, the urban planning department of La Défense in Paris reports an expansion of flex offices and the creation of new meeting spaces in companies located in this area. The Suez Group headquarters, for instance, have recently been fully transformed into a flex office space. 

This transformation cannot be done without taking into account collective and individual conditions, in addition to practical ones. In this context, the following developments aim to highlight best practices and the legal framework for flex office arrangements. 

 

1. Practical considerations to discuss together with Trade Unions, and the company's occupational physician

The implementation of flex office entails that employees will no longer have a dedicated and personal workspace. 

As such, this change requires to rethink the organisation of premises in order to allow employees to come to work when they need to,[4] for instance to meet with their colleagues and managers. 

Employees should also have the means to enjoy privacy and confidentiality on site, if required. In addition, managers should be taught how to deal with their team members, in the context of the flex office arrangement.[5] 

The employer will have to ensure that all the work premises are easily accessible to disabled employees, or those in need of adapted workstations.[6] Likewise, other employees may benefit from individual measures to adjust, adapt or transform their workstation, as recommended by the occupational physician for reasons related to their health.[7] In such cases, the employer should consult the occupational physician in order to assess the compatibility of this organisation with these employees’ individual situation.

Another challenge faced by companies when implementing the flex office is the definition of the right number of workstations needed per employee. 

To estimate this ratio, the company must evaluate the proportion of the workforce working remotely to ensure that the ratio is sufficient to allow the part of the workforce that does not wish to telework to work on-site. Otherwise, the employer risks effectively imposing telework on employees who wanted to be able to work in the company's premises (e.g. if an employee wishing to work on-site must first book a desk on a company application and is unable to do so because all desks have already been booked). Indeed, if a workspace isn’t actually made available to the employee, the latter may claim compensation for occupying their home for work purposes.[8]

In order to monitor the occupancy rate of premises and to allow employees to easily find an available desk, new software and applications are offered to employer. For instance, Groupe BPCE, JP Morgan, Goldman Sachs, Natixis and Société Générale have recently installed presence sensors under shared desks. In practice, when an employee sits down at a desk, the sensor will detect their presence and the workstation will be displayed as booked for the day on the application used by the company.[9]

Hence, companies should discuss the articulation between telework and flex office arrangements, noting that these topics are often discussed separately.[10]

Several factors will have to be assessed and discussed internally, in order to implement a tailor-made flex office solution. The involvement of trade unions will be key to successfully implementing and adjusting to such arrangements.

 

2. Legal collective considerations

2.1. Preparing the project with the works council 

In companies employing more than 50 workers, the works council (“Comité social et économique”) must be consulted on any major change affecting employees’ health and safety or working conditions.[11]

Regardless of the legal document used to implement a flex office arrangement (e.g. collective bargaining agreement, charter, unilateral decision), the company will be required to inform and consult its works council on the project.

In order to give an informed opinion on the project the works council members may call on an expert.[12]

Moreover, according to the Climate Law of August 2021, the works council will also have to be informed and consulted on the environmental consequences of a new work arrangement.[13]

The Health, Safety and Working Conditions Committee ("Commission santé, sécurité et conditions de travail") of the works council [14] if any, may also be involved in the development of the project. Working with this committee could be beneficial to the company in identifying the most appropriate preventive health and safety measures to be associated with the flex office project.

2.2 Protecting workers’ health and safety

An important challenge that companies face upon switching to flex office is the risk of isolation of employees and the degradation of their mental health.

According to the French National Research and Safety Institute for the Prevention of Occupational Accidents and Diseases (“INRS”), flex office arrangements can be perceived by employees as a dispossession of their workspace, which can constitute a psychosocial risk factor. Isolation may also be particularly present among new recruits for whom flex office may entail a difficult integration.[15]

When implementing any flex office arrangement, the employer will be required to update the single occupational risks assessment document (“Document unique d’évaluation des risques professionnels”) in order to include measures aimed at preventing associated risks, in particular psychosocial ones.[16]

In this respect, the preparatory work carried out for and/or with the works council and the Health, Safety and Working Conditions Committee, if any, should be useful. All the more because, from April 2022 onwards, companies will have to consult the works council when updating their occupational risks assessment document.[17]

From a more operational perspective, creating dynamic environments for conviviality will be key in this transition to prevent employee isolation and strengthen the working community. 

Providing an in-depth integration process for new recruits should also be helpful.

2.3 Protecting company and employees data

Another challenge that employers will encounter when implementing flex office is the way to manage sensitive company data. Indeed, in the absence of a designated desk space, confidential files will face a greater risk of being accessed by non-authorized staff. 

A shift to flex office will therefore increase risks of data leakage and such, a breach of the General Data Protection Regulation (“GDPR”), which require that companies take measures to ensure that any person who has access to personal data cannot process them unless authorised by the controller or by Union law or the law of a Member state.[18]

In order to protect the company’s data and prevent leaks, a “clean desk” policy [19] is recommended. This policy may be implemented along with the installation of individual lockers in which employees can store their personal belongings.[20]

For employees handling sensitive data on a regular basis, exceptions to the flex office arrangement could be made, noting that such exceptions would have to be justified by a legitimate interest, so as to avoid any unfair discrimination between employees. 

To prevent this issue, a company-level collective bargaining agreement could draw a list of people/functions, who would keep a designated office, in identified departments such as, human resources, general services, IT, marketing and accounting.

 

3. Individual legal considerations

3.1. Requesting some employees' approval

The attribution of a specific office or workstation is not a contractual element, which means that the employer is free to make any organisational change in the works place. The implementation of flex office does not require, per se, the employees' individual approval, except for protected employees [21] whose consent is necessary, upon any change of working conditions. 

By way of exception, employees' individual approval will be required if the transition to a flex office is coupled with the introduction of telework [22] or the relocation of company premises outside their usual geographic area of work.[23]

3.2 Reimbursing employees' professional expenses

All employers are bound to bear professional costs incurred by employees’ work, including when they are in a teleworking situation.[24] In practice, the reimbursement of such expenses is explained in the charter or collective bargaining agreement detailing telework arrangements.

Amongst this question, the issue of whether teleworkers should be provided with lunch vouchers [25] is at the heart of a judicial debate: the Nanterre Court of Justice considered that teleworkers, who do not incur the additional cost of catering outside their homes, were not in a comparable situation to on-site workers and ruled that they were not entitled to be granted lunch vouchers.[26] On the contrary, the Paris Court of Justice considered that teleworkers are in a situation equivalent to that of on-site employees since telework is not necessarily carried out at home, and that hence they should benefit from meal vouchers.[27]

With regard to the general principle of equal treatment between employees,[28] given the lack of exclusion of teleworkers by the statutory texts governing lunch vouchers,[29] caution is advised, all the more since the Labour Administration considers in one of its Q&A documents that teleworkers should be provided with lunch vouchers.[30]

Regarding transport costs, in principle, employers must cover at least half of their employees' public transport costs for journeys between their habitual residence and their workplace.[31] Yet, the transition to a flex office and the generalisation of teleworking may lead to employees moving to areas further away from their workplace, therefore increasing the employer’s reimbursement costs. As a consequence, the company making this transition will have to take this extra cost into account as the Supreme Court [32] and the administration [33] both state that no distinction should be made according to the physical location of the residence. In case of dispute, the judge determines the employee's habitual residence based on a number of elements (e.g. the place where the children go to school, the absence of stable accommodation near the workplace, etc.). For instance, the French Supreme Court ruled that an employee who lived in a French department located more than 700km from his workplace could claim partial reimbursement of his SNCF train subscriptions as he didn’t have a stable habitual residence closer to his workplace.[34]

However, these principles do not apply to accommodation costs incurred during days on which employees work from the company’s premises, as these costs are entailed by the employees’ personal choice to live far away from their workplace.[35] Hence, employers do not have to bear the accommodation costs, in such a situation.

3.3 Informing employees about the use of their personal data

In theory, the use of presence sensors for flex office arrangements will not require personal employee data to be collected. Thus, the French Data Protection Authority (CNIL) has no concerns regarding this system and considers that it is not necessary to make a prior declaration of the device to its authorities.[36]

However, any other system or device aimed at geo-locating an employee would be forbidden, this being only authorised in limited circumstances, provided for by the CNIL.[37]

 

[1] ACTINEO’s 2019 Barometer

[2] It is worth noting that real estate is the second most important expenses for companies, after salaries. 

[3] « Comment le télétravail va permettre aux entreprises de réaliser des économies », in Capital, 25 June 2021, https://www.capital.fr/votre-carriere/comment-le-teletravail-va-permettre-aux-entreprises-de-realiser-des-economies-1407622

[4] Telework is based on the agreement of the employee and should be reversible. The Employer has the obligation to provide a workplace to its employees (Court of Appeal, Lyon, 7 February 2019, RG n° 16/07869). Employee can refuse to telework, and cannot be sanctioned for it (Supreme Court, 2 October 2001, n°99-42.727; Article L. 1222-9 of the French labour Code and 2.3.3 of the National Interprofessional Agreement of 26 November 2020) 

[5] Many experts recommend organizing flex office arrangements within each services, to keep a coherence, and allow the employees/managers to know where people are (E. Dicharry, “Le flex office sera-t-il l'avenir du bureau ?”, in Les Echos, 20 September 2021, https://www.lesechos.fr/idees-debats/sciences-prospective/dans-les-bureaux-lavenir-sera-au-flex-office-1347685).

[6] Article R. 4225-6 of the French Labour Code

[7] Articles L. 4624-3 and R. 4624-6 of the French Labour Code

[8] French Supreme Court, 12 December 2012, n° 11-20.502 

[9] N. Guarinos, « Des capteurs de présence des salariés sous les bureaux, un surprenant dispositif pour organiser le « flex office », in Le Figaro, 28 September 2021, https://www.lefigaro.fr/social/capteurs-de-presence-sous-les-bureaux-le-surprenant-dispositif-pour-organiser-le-flex-office-dans-certaines-banques-20210928

[10] The French National Agency for the Improvement of Working Conditions published in October 2020, ten recommendations related to Telework, amongst which: set up an adjustable work frame, define duties which can be performed remotely, adopt rules which are easy to implement, facilitate the use of electronic devices and tools and anticipate their impact, address the risk of over-connection, support remote management^[10].

[11] Article L. 2312-8 of the French Labour Code 

[12] Article L. 2315-94, 2° of the French Labour Code. If so, the cost of this expert will be borne 80% by the employer and 20% by the works council (Article L. 2315-80 of the French Labour Code)

[13] Article L. 2312-8 of the French Labour Code as amended by Law n° 2021-1104 ("portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets")

[14] Article L. 2315-36 of the French Labour Code 

[15] INRS, “Des espaces de travail en plein questionnement”, Travail et Sécurité n° 825, April 2021

[16] Article R. 4121-1 and R. 4121-2, 2° of the French Labour Code 

[17] Article L. 4121-3 of the French Labour Code as it will be completed by Law n° 2021-1018 

[18] General Data Protection Regulation, article 32, §4 and General Data Protection Regulation, article 83, §4, a. Such a breach of the GDPR could be sanctioned by an administrative fine of up to EUR 10,000,000 or up to 2% of the total annual global turnover of the previous financial year (whichever amount is higher).

[19] The employee removes all work-related documents and all personal items from his desk at the end of the day 

[20] Article R. 4228-2 of the French Labour Code

[21] French Supreme Court, 10 July 2019, n° 18-14.762

[22] Article L. 1222-9 of the French Labour Code 

[23] French Supreme Court, 20 February 2019, n°17-24.094

[24] ANI 2. 6 November. 2020, art. 3.1.5 

[25] These vouchers benefit from the same exemptions as for on-site workers according the social security authority – see Official Social Security Bulletin, Professional expenses section, https://boss.gouv.fr

[26] Nanterre Court of Justice (“Tribunal Judiciaire”), 10 March 2021, n° 20/09616 

[27] Paris Court of Justice, 30 March 2021, n° 20/09805

[28] Article L. 1222-9, III. of the French Labour Code 

[29] Article L. 3262-1 of the French Labour Code

[30] Ministry of Labour Q&A, "Telework during COVID-19" (“Télétravail en période de COVID-19”), https://travail-emploi.gouv.fr/le-ministere-en-action/coronavirus-covid-19/questions-reponses-par-theme/article/teletravail-en-periode-de-covid-19

[31] Articles L. 3261-1 and L. 3261-2 of the French Labour Code

[32] French Supreme Court, 22 June 2016, n° 15-15.986 

[33] Official Social Security Bulletin, Professional expenses section, No. 520, https://boss.gouv.fr

[34] French Supreme Court, 12 November 2020, n° 19-14.818; Official Social Security Bulletin, Professional expenses section, No. 780,https://boss.gouv.fr

[35] Official Social Security Bulletin, Professional expenses section, No. 1250 and 1260; https://boss.gouv.fr

[36] N. Guarinos, « Des capteurs de présence des salariés sous les bureaux, un surprenant dispositif pour organiser le «flex office », in Le Figaro, 28 September 2021, https://www.lefigaro.fr/social/capteurs-de-presence-sous-les-bureaux-le-surprenant-dispositif-pour-organiser-le-flex-office-dans-certaines-banques-20210928

[37] French Data Protection Authority (CNIL), Decision No. 2015-165 “on the adoption of a simplified regulation concerning the automated processing of personal data by public or private entities aimed at geolocating the vehicles used by employees”, rendered on 4 June 2015, in particular Article 2.