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Do employers in France need to allocate restaurant vouchers to employees working remotely?

Written by
Capstan Avocats, the law firm setting the benchmark for labour law in France.
25.09.20
4
Do employees working remotely, as many are during the COVID-19 pandemic, have a right to restaurant vouchers? This article provides guidance.

Remote work, which has already brought up to date thanks to the complete overhaul of the system carried out by one of the Macron ordinances (n°2017-1387 of 22 September 2017), has been put forward as a preventive measure in the context of the Covid-19 pandemic. While employees have appreciated this new form of work organisation, more practical issues have emerged over the weeks, including whether they are still entitled to restaurant vouchers (tickets restaurant, or ‘TR’).

1. The purpose of TRs

The restaurant voucher is a special payment voucher issued by the employer to employees to enable them to pay for all or part of the price of a meal consumed in a restaurant (Labour Code, article L. 3262-1).

It was introduced to enable employees of organisations which do not have a catering facility (canteen, company restaurant) at their place of work to have lunch off site on advantageous financial terms, since their employer, jointly with the employee, pays the cost of these meals and the employer’s contribution is exempt from social security contributions and taxes.

2. What are TRs used for?

The use of TRs has changed: first they could be redeemed with individuals or organisations exercising the profession of restaurateur, hotel and restaurant owner or a similar activity; since 2009 they can also be used in fruit and vegetable retailers (Labour Code, article L. 3262-3 amended by law no. 2009-879 of 21 July 2009).

It is for this reason that many shops and food superstores accept payment for certain food purchases by means of one (or even two) TRs per day. The use of TRs is limited to a maximum amount of EUR 19 per day (Labour Code article R. 3262-10).

The terms of use of restaurant vouchers were last amended on 10 June 2020 (by Decree No. 2020-706) to encourage the use of TRs in restaurants and hotel restaurants, and thus to respond to the economic difficulties of these establishments resulting from their closure during the state of health emergency. Between 11 June and 31 December 2020 and only in hotel-restaurants or similar establishments, this decree allows the use of TRs on Sundays and public holidays and increases their maximum amount of use to EUR 38 per day.

3. A potentially discriminatory situation?

The employer might be tempted to consider that, since the TR is intended to defray some of the additional expenses incurred by the employee in eating outside his or her home, in particular in a restaurant, where s/he is teleworking from home, no TRs should be allocated since the employee can have lunch at home at no extra cost.

The risk is that excluding remote workers from the benefit of TRs is contrary to the principle of equal treatment. Indeed, under the terms of article 4 of the National Interprofessional Agreement (ANI) of 19 July 2005 on telework:

‘teleworkers enjoy the same legal and contractual rights and benefits as those applicable to employees in comparable situations working on company premises.’

This principle is taken up by Article 21 of Order no. 2017-1387 of 22 September 2017, which amends Article L. 1222-9 of the Labour Code, specifying that ‘teleworkers have the same rights as employees who perform their work on company premises.’

Furthermore, Article R. 3262-7 of the Labour Code, which stipulates that ‘the same employee may only receive one meal voucher for each meal included in his daily working hours’, does not in any way require the meal to be taken outside the home.

Excluding teleworkers from the benefit of TRs even though the texts do not require that the meal be taken outside the home could therefore be deemed contrary to the principle of equal treatment.

The only possible exclusion could be where a teleworker does not work a full day or more precisely, does not work at a meal time. In this case the employee would not meet the conditions for entitlement to the benefit of meal vouchers, as provided in Article R.3262-7:

‘An employee may only receive one meal voucher for each meal included in his/her daily working hours.’

4. The URSSAF position

On 8 September 2015, the group of organisations responsible for collecting employer and employee social security contributions, URSSAF, published its official position, which is available here. It sets several conditions for teleworkers to be able to claim the benefit of meal vouchers:

  • Employees working on the company’s premises must themselves benefit from them,
  • The working conditions of employees working from home and those of employees working from the company’s premises must be equivalent.

 

According to Acoss, the central body of the URSSAF and other social organisations, the teleworker is a ‘fully-fledged employee’ and therefore has the same individual and collective rights as his or her colleagues working on site.

If employees who work on site in the employer’s premises benefit from TRs, the same applies to teleworkers ‘at home, on the move or in a satellite office’, as long as they fulfil the same conditions as employees working on the organisation’s premises: they will receive one TR per day worked as long as their working day includes ‘two shifts interrupted by a meal break.’

Acoss has apparently taken a position on the issue and considers that, on the basis of the principle of equal treatment, employers must assume that employees working remotely should benefit from meal vouchers on the same basis as employees who continue to work on the company’s premises and who benefit from them.