Professional Mobility: What the Law Says

Professional mobility is a human resources management tool. However, it is considered a change in an employee's professional situation resulting from their assignment to another position, department, or establishment within the same company. Mobility can sometimes involve geographical relocation, from one region to another or from one country to another.
1-What is meant by mobility?
The word "mobility" in labor law designates the change that can bring modifications to the conditions in which an employee holds a job. This may involve a change in professional category, but most often a transfer, secondment, or reclassification. In this regard, various questions arise: Is professional mobility imposed or offered? Can employees refuse it?
In terms of organization, professional mobility is a relevant technique in human capital management. This mobility can occur in different situations. It can be at the initiative of the employer; this is the case of a new assignment which can be a form of sanction (demotion), also called punitive transfer. It can also consist of a move from one company to another following a legal change (merger, restructuring, reorganization). It can finally be a promotion (career progression).

2- Mobility can be an employee's choice
Mobility can, secondly, result from the choice of the employee who requests another position in order to have better working conditions.
It can also result from the opinion of the occupational physician who may request a temporary change of position for an employee who is a victim of a workplace accident or an occupational disease.
It should be noted that the practice of professional mobility generates many advantages for both the company and the employees. In general, it:

• Is an effective means of internal recruitment to meet skills needs;
• Guarantees job security, ensures staff development within the company and prepares some employees to take on positions of responsibility;
• Helps combat workplace routine and redistribute the workload more equitably;
• Helps to establish a stable social climate by avoiding conflicts between certain employees through task rotation to balance the workload.

Furthermore, professional mobility has some drawbacks for the employee:

• It provokes the fear of the unknown and the anxiety of not being able to integrate or adapt easily within a new group, or of not being up to the task;
• Mobility is a learning process, meaning that it requires training for the newcomer;
• It can demotivate older employees who fear that their career will be blocked.

3- To avoid any dispute, the employer must include a mobility clause in the employment contract
From a legal standpoint, professional mobility can lead to a modification of one of the essential elements of the contract (place of work, qualification or function, remuneration, duration of work). In this case, the prior agreement of the employee concerned is essential and necessary. Thus, to avoid any dispute, the employer must include a mobility clause in the employment contract that allows them to modify, during the execution of the employment contract, the place of assignment of an employee. However, for this clause to be valid, the employer must take into account some relevant elements:

• Not only must the mobility clause be provided for in the employment contract upon signature, but it must also be accepted by the employee. If this condition is not met, any sanction due to the employee's refusal is null and void. Note! A provision relating to a change of workplace included in the internal regulations or the collective agreement is subject to the agreement of the employee concerned;
• In practice, the employer must clearly define the geographical area of application in the mobility clause. The implementation of this clause must be proportionate to the objective sought and appropriate to the family obligations of the employee concerned. Thus, the employer must justify their decision by the interest of the company (objective reason);
• The employer has the obligation to respect a reasonable period of notice before its application. On this point, it is important to specify this period of notice in the clause.

When the occasional or temporary transfer of an employee outside the usual geographical area is not justified by the interest of the company, and the employee has not been informed beforehand by the employer within a reasonable time, the judge may consider that this transfer is a modification of the employment contract that the employee may refuse. In this regard, the Supreme Court considers that the decision to assign an employee to another city without this transfer being provided for in the contract reveals an abuse of right. The employee may therefore refuse it without their refusal being considered serious misconduct justifying their dismissal (judgment no. 2208 of 24/12/1990, file no. 9895/88°). On the other hand, the modification of the place of work in the same geographical area constitutes a simple change in working conditions, and the employer is not required to have the prior agreement of the employee. Thus, the employer has the obligation to provide the transferred employee with the means of transport (staff transport or travel allowances) to enable them to get to their new workplace.
It should be emphasized that even in the absence of a mobility clause in the employment contract, the nature of certain activities requires the employee to accept a certain temporary geographical mobility.

4- A protected employee may refuse mobility
Note! The fact that a protected employee refuses mobility is not a reason for the employer to consider dismissal proceedings for serious misconduct because this type of employee benefits from a special procedure provided for by the labor code. In other words, if a protected employee (employee representative, union representative, pregnant woman, occupational physician, employee victim of a workplace accident) refuses such mobility, the employer must request authorization for dismissal from the labor inspector, even in the presence of the mobility clause in their employment contract.
In conclusion, the judge has the power of appreciation which allows them to verify, on the one hand, whether the employer's decision is abusive, and, on the other hand, whether the mobility is justified by the interest of the company.


Brahim Atrouch

Lavieeco.com