Expatriation: employer's obligations
Within the next ten years, nearly 4 million French will be concerned by expatriation, as a necessary step in their careers often required by their employer.
Given this assumption, there are two French law schemes to which an employee may be subjected:
➢ The detachment: the employee is seconded for a fixed period; he keeps being subordinated to his French employer of origin, and is hierarchically attached to him.
➢ Expatriation: the employee is expatriated, which means that its original French work contract is suspended in favour of a local employment contract for a fixed term.
In both cases, the employer has a number of obligations towards the employee sent abroad.
The three main ones are: 1. The obligation of safety 2. The obligation of repatriation 3. The obligation of reclassification
Obligation of safety
In addition to the obligations concerning safety (intrinsic obligation in the employment contract), the employer must, in the case of expatriation, ensure the safety of its employees especially if it is a dangerous area.
The employer commits an inexcusable fault if he had or should have realized the danger to which he exposed his employee and if he has not taken the necessary steps to preserve him.
If its security is at stake, the expatriate employee may demand his immediate repatriation to France. In the case of a refusal of the employer (or inactivity), the employee may claim damages.
Types of risks
Health risks • Infectious diseases (malaria, dengue, hepatitis, etc.), • Epidemics (cholera, meningitis, etc.), • Low quality of local medical facilities, • Reduced number of local medical facilities, • Difficult access to drugs, • Unsatisfactory hygiene conditions.
Security risks • Crime (assault, fraud, etc.), • Hostage taking, • Terrorism, • Terrestrial and maritime piracy, • Presence of mines, • Other risks associated with political and social contexts (insurrections, coups, civil war, etc.).
Obligation of repatriation
Under Article L. 1231-5, paragraph 1 of the Labour Code: “When an employee hired by a parent company was put available to a foreign subsidiary with an employment contract concluded with this last, the parent company ensures repatriation in the event of dismissal by the subsidiary and gives him a new job consistent with the importance of his previous position within it. “
The employer therefore has an obligation to repatriate the employee at the end of his notice, and that to the extent the employee’s presence in the country of expatriation is no longer necessary.
Obligation of reclassification
The employer is not required to provide the employee exactly the same position he occupied before his departure abroad, but must make an offer of reinstatement serious, precise and consistent with the equivalent job prior his departure.
If the employer does not fulfill those conditions, then there is a modification of the employment contract … It can not be imposed on the employee, he is entitled to take note of the termination of his employment contract to the detriment of the employer, who thus will conduct to a dismissal without just cause.
Thus, it is not excluded that the new position proposed to the repatriated employee be less advantageous than that he had abroad. However, as long as it is compatible with the former position before he went abroad, the employee has none acquired right (unless otherwise agreed between the parties).
Source : www.juritravail.com