Teleworking and Judicial Jurisdiction: When the Home Does Not Become the Habitual Workplace

You own a flat in Béthune and rent it to an executive who works for a London company. He spends three days a week at your flat, the rest in London. A dispute arises: he demands a rent reduction, arguing that his workplace is now his home in Béthune. But what is the legal position? This decision of the Court of Cassation of 27 November 2013 (No. 12-24.880) provides a clear answer: the habitual workplace cannot be inferred from a mere tolerance of partial telework.

But what exactly does this change? For an employee, the location of his workplace determines the competent court in the event of a dispute (employment tribunal, etc.), as well as certain obligations of the employer (social security, local employment law). In short, if you work from Lens but your employer is in London, which judge will hear your dispute?

This decision falls within the framework of the Brussels I Regulation (EC Regulation No. 44/2001), which sets out the rules on judicial jurisdiction in Europe. It specifies that the habitual workplace is the place where the employee spends most of his working time over the whole period of his activity. And a tolerance of telework, even prolonged, is not enough to move it if the employer has not given his express consent.

The facts: a story like many others

Mr X, an executive working for a company based in Slough (United Kingdom), was hired in 2007. His contract stated that his place of work was London. In 2008, he obtained permission from his superiors to perform part of his duties from his home, then located in Slough. In August 2009, he moved to France, to Lille, and continued to work from home part of the week, while regularly travelling to London.

In 2010, the relationship deteriorated. Mr X brought proceedings before the Lille employment tribunal, arguing that his habitual workplace was now in France. The employer contested the jurisdiction of the French courts, arguing that the workplace remained London. The Douai Court of Appeal ruled in favour of the employer. Mr X appealed to the Court of Cassation.

The appeal was dismissed. The Court of Cassation confirmed that the tolerance of telework had not changed the habitual workplace. Indeed, over the whole period (2007-2010), most of the working time was spent in London. Moreover, the employer never agreed to a transfer to France. The tolerance was a precarious derogation, revocable at any time.

The reasoning of the court — dissected

The legal basis is Article 19(2)(a) of the Brussels I Regulation. This provision allows an employee to sue his employer before the court of the place where he habitually carries out his work, or of the last place where he did so. But what is the 'habitual workplace'? The Court of Cassation, following the case law of the Court of Justice of the European Union, defines it as the place where the employee spends most of his working time for his employer, taking into account the whole period of activity.

In this case, the Court of Appeal found that Mr X worked mainly in London. His move to Lille and the occasional permission to telework did not change this reality. The Court of Cassation approved this reasoning: there was no clear intention of the parties to transfer the workplace to France. In other words, the mere fact of working from home, even regularly, does not make it the habitual workplace if the bulk of the activity remains elsewhere.

What few people know is that the burden of proof lies with the employee who alleges a change of workplace. He must prove an express agreement or a consistent and unequivocal practice of the employer. In my practice, I have come across cases where employees thought they had acquired a right to telework because their employer had tolerated it for a few months. Be careful: tolerance does not create an acquired right.

What this means for you — concretely

For a landlord in Lens: if you rent to an employee who partially teleworks, this does not affect the location of his workplace. You cannot, for example, require a clause in the lease providing that the dwelling is his workplace to justify a higher rent, unless this is contractually agreed and corresponds to a stable reality.

For a tenant in Béthune: if you work for a company based abroad and you spend three days at home, two days abroad, your habitual workplace probably remains abroad. In the event of a dispute with your employer, you will have to bring proceedings before the court of the country where the effective centre of your activity is located. For example, if you are a salesperson and you spend 60% of your time in London, the London courts will have jurisdiction.

For a property buyer: if you buy a property in Lens thinking that you will work there full-time, but your employer has not formalised a telework agreement, you may have to travel regularly. Check your employment contract and obtain a clear amendment if you want your home to become your habitual workplace.

Concrete amount: if you bring proceedings before an incompetent court, you risk wasting time and money. Legal fees for a plea of lack of jurisdiction can amount to €1,500 to €3,000, not including travel expenses. Better to check in advance.

Four tips to avoid this type of dispute

• Have an amendment to your employment contract signed: if you want your home to become your habitual workplace, obtain a clear written agreement from your employer specifying the arrangements (number of days, duration, etc.). Without this, telework remains a precarious tolerance.
• Keep evidence of your working time: diaries, connection logs, emails, etc. In the event of a dispute, you will need to demonstrate where you spent most of your time. A simple affidavit is not enough.
• Check the tax and social implications: working from another country may change your tax residence and your affiliation to social security. Consult a chartered accountant or a specialist lawyer before moving.
• Anticipate the clauses of your lease: if you are a landlord, do not assume that the tenant uses the dwelling as a habitual workplace. If in doubt, ask him to provide you with a certificate from his employer.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation and the CJEU. For example, in the Koelzsch case (CJEU, 15 March 2011, Case C-29/10), the Court already held that the habitual workplace is the place where the employee actually carries out his activities, taking into account the whole period. In the Mahamdia case (CJEU, 19 July 2012, Case C-154/11), it specified that the mere fact of working from another Member State is not enough to move the workplace if the employer has not acquiesced.

The trend is therefore towards stability: the workplace is not changed by mere tolerance. However, with the rise of telework post-Covid, one can expect judges to be more attentive to formalised agreements. If an employer signs an amendment providing for 100% telework from Lens, the workplace will be Lens. But in the absence of a written document, the case law remains firm: the habitual workplace is where the employee spends the majority of his time, in a stable and lasting manner.

For the future, the Brussels I Regulation has been replaced by Regulation (EU) No 1215/2012, but the provisions on employment contracts are similar. The issue of cross-border telework remains current, and disputes may increase. Hence the importance of formalising agreements.

Key points to remember

• Where should I bring my dispute if I telework from Béthune for a foreign employer? Before the court of the country where you spend the majority of your working time over the whole period of your employment. If it is abroad, the foreign court has jurisdiction.
• Can I require that my home be recognised as my habitual workplace? Yes, if you obtain a written amendment from your employer. Without this, a mere tolerance is not enough.
• What are the risks if I bring proceedings before an incompetent court? You waste time and money: a plea of lack of jurisdiction may be raised, and you will have to start again before the correct court.
• Does this decision apply to French employees working from abroad? Yes, the same reasoning applies in reverse: if you work from abroad for a French employer, your habitual workplace may be abroad if you spend the majority of your time there.
• What can I do if my employer refuses to sign an amendment? Document your working time and your communications. In the event of a dispute, you may try to demonstrate a consistent practice, but the case law is unfavourable.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →