Anyone has the right to choose where they live, as an aspect of the right to respect for the home protected by Article 8 of the European Convention on Human Rights. An employer may interfere with that right only within the limits set by the Labour Code : the restriction must be justified by the nature of the task to be performed and proportionate to the aim pursued. The Court of Cassation has long held that a clause requiring an employee to live in a designated area or move their home is valid only where it is essential to protect the legitimate interests of the business and proportionate, given the post held.
In this case, a collective agreement applicable to a company’s sales network required any employee whose transfer no longer allowed them to return home each day within a reasonable travelling time (set at a maximum of two hours) to move house. Several employees who refused were dismissed, and the lower courts upheld the clause by linking it to the employer’s obligation to ensure employees’safety.
The Court of Cassation quashed that decision. A clause founded on the mere organisational needs of a business, and more generally on its smooth running, cannot justify interference with the employee’s free choice of home ; the dismissal of an employee who refuses such an unjustified clause is therefore without real and serious cause. It made no difference that the obligation flowed from a collective agreement rather than the employment contract : the test of justification and proportionality applies to collective norms in the same way as contractual clauses.
In practice, employers wishing to require staff to live near their workplace must show that the duties themselves make that proximity essential (such as on-call duties, emergency call-outs or a requirement of permanent availability inherent in the post) and should document the need post by post.
