Interview with Aurélien Louvet, partner
In this interview, Aurélien Louvet, a partner at Capstan, discusses the challenges that geopolitical tensions in the Middle East and air traffic disruptions have posed for some companies, leaving their employees stranded abroad and unable to return to France to resume their jobs.
With the physical impossibility of on-site work and uncertainties surrounding salary payments, not to mention alternative solutions such as teleworking, managing these situations raises several labour law issues. Aurélien Louvet sheds some light on the situation.
1. Can an employee’s absence due to being stranded abroad be considered misconduct?
In principle, no. If an employee is objectively prevented from returning to work, for example due to flight cancellations or an inability to find alternative transport, it is difficult to consider their absence as a disciplinary offence.
The employee must be able to provide evidence they have been prevented from returning to work. In such cases, the absence is more a result of circumstances beyond their control than a breach of their contractual obligations.
2. Should their employer continue to pay the employee’s salary during this period?
This is a more delicate question. Under French labour law, wages are, in principle, payment for work performed. Therefore, when no work is performed, there are serious legal arguments for considering that remuneration is not due.
However, the risk of a dispute cannot be completely ruled out. An employee could argue that they were available to their employer and that their inability to work was due solely to external circumstances. This could then lead to a dispute.
3. What pragmatic solutions could be considered?
In this type of exceptional situation, the best approach is usually to talk to the affected employees. The aim is to identify a solution that minimises the impact on both parties.
Several options could be considered, such as taking leave or rest days to cover the period in question or, where possible, temporarily organising remote working.
4. Is working remotely from abroad a secure solution?
While this can be a pragmatic solution, it remains a relatively grey legal area. Labour law and social security rules are not always designed for this specific situation.
One important point to bear in mind is what constitutes an accident at work. If an employee working remotely has an accident during their working hours, it could be classified as a work-related accident, with all the legal and insurance implications that this entails.
In these unprecedented situations, it is often key to combine legal certainty with managerial pragmatism to find a balanced solution for the company and the employee.
