Dismissal for Remote Work Insubordination: What the Spanish Ruling Reveals

Nine days of unauthorized remote work justify a disciplinary dismissal, even after 26 years of service: this is the position adopted by the Spanish courts in a case involving an in-house lawyer employed in the Balearic Islands. The sanction was upheld on the grounds that the repetition of a breach — here, the refusal to return on-site despite an express instruction from the employer — characterizes insubordination independently of the employee’s seniority. For an HR director or the executive of a mid-sized company, this foreign decision raises a direct question: under French law, does long-standing seniority neutralize a disciplinary ground? The answer is no, but subject to strict procedural conditions. Here are the comparative-law points to factor into your risk analysis before any termination decision linked to remote work.

Long Seniority: Why It Does Not Protect Against Disciplinary Dismissal

The managerial instinct — “26 years with the company, you don’t dismiss over nine days” — is legally incorrect, in Spain as in France. Seniority is not a cause of disciplinary immunity. It comes into play at a different stage: that of assessing the proportionality of the sanction and calculating severance.

Under French law, the disciplinary regime is based on Article L.1331-1 et seq. of the French Labour Code. A faute grave (serious misconduct), defined as misconduct that makes it impossible to keep the employee in the company, permits dismissal without notice or severance pay (settled case law of the French Supreme Court’s Labour Division, the Cour de cassation, on the concept of serious misconduct). Seniority is not among the criteria establishing the existence of the misconduct: it modulates its intensity, not its reality.

What the Spanish case illustrates, and what French employers underestimate, is the reversal of the assessment: the longer the seniority, the more the employee is deemed to know the internal rules. The persistent refusal of an experienced manager to carry out a clear instruction weighs more heavily, not less, in the characterization of insubordination.

Insubordination and Remote Work: The Written Instruction Changes Everything

The tipping point of the Spanish decision is not remote work in itself, but the refusal to comply with an express instruction to return on-site. This is the distinction every HR director must isolate.

Under French law, remote work is governed by a collective agreement or a charter (Article L.1222-9 of the French Labour Code). Remote work is in principle organized by agreement between the employer and the employee; the employee has no unilateral right to work remotely outside exceptional circumstances. An employee who stays home when the employer has notified them in writing of the obligation to return to the workplace commits a breach of their contractual obligations.

The expert insight you won’t find in HR brochures: “A remote-work disciplinary case is won or lost on the timestamp. Without a dated email restating the instruction to return, the employer does not prove insubordination — it proves a mere disagreement over organization, and the judge reclassifies.” The difference between sanctionable insubordination and tolerable managerial drift comes down to a written trace predating the alleged breach.

In practice, to establish insubordination under French law:

An organizational rule exists (remote-work charter, service memo, contract clause).
The employer has individually notified the employee of the obligation to return, in dated writing.
The employee persisted despite this notification.
The employer retains proof of each step.

Burden of Proof: The Employer Must Document, Not Allege

In the Spanish case, the confirmation of the sanction rested on the employer’s demonstration of the factual reality of the days of absence from the assigned workplace. This point is at the heart of the comparison between the two regimes.

Under French law, Article L.1235-1 of the French Labour Code governs the evidentiary regime for dismissal: in the event of a dispute, the judge assesses whether the ground is real and serious (cause réelle et sérieuse) in light of the evidence provided by both parties, and if doubt remains, it benefits the employee. For serious misconduct, the burden weighs more heavily on the employer, who must positively establish the facts.

The recurring practical frustration in litigation: the HR director arrives at the hearing convinced that “everyone knew” the employee was supposed to return — but without any enforceable document. Internal conviction is not evidence. The judge requires:

The instruction to return (email, letter, timestamped HR notification).
Proof of actual absence (badge records, VPN connections, schedules, witness statements).
The absence of any admissible justification from the employee (sick leave, prior authorization, established tolerance).

The counterintuitive point: past tolerance can wreck the case. If the employer allowed the employee to work remotely for months without reacting, it created a custom (usage). Abruptly sanctioning tolerated conduct exposes the employer to reclassification as dismissal without real and serious cause. The written instruction to return must therefore explicitly end the tolerance and set a date.

Proportionality of the Sanction: The Real Battleground in French Litigation

This is where French law diverges most clearly from the upheld Spanish solution. The French judge reviews the proportionality between the breach and the sanction (Article L.1331-1 and case law on the scale of sanctions).

Would nine days of unauthorized remote work justify serious misconduct in France? The answer is not automatic. The judge would examine:

The existence of a prior warning or a gradation of sanctions.
The actual harm to the company (disruption, unmanned position).
Persistence after a formal notice (mise en demeure).
The absence of any disciplinary record over 26 years.

An unblemished seniority of more than two decades is, under French law, a factor the judge integrates into the proportionality assessment. A first breach, even if established, in an employee with no disciplinary history, frequently shifts from serious misconduct toward simple real and serious cause — with notice and severance as a consequence. The classification chosen by the employer determines the extent of the financial risk.

Comparative Law Spain / France: Table of Operational Divergences

Criterion	Spanish solution (commented ruling)	Applicable French regime
Effect of seniority (26 years)	Does not prevent dismissal	Does not prevent misconduct, but weighs on proportionality
Triggering fact	Refusal to return on-site despite instruction	Insubordination = contractual breach (L.1222-9, L.1331-1)
Burden of proof	Employer demonstrates factual reality	Employer for serious misconduct; doubt benefits the employee (L.1235-1)
Judicial review	Confirmation of the sanction	Systematic proportionality review (L.1331-1)
Financial stakes	—	Serious misconduct = no severance; real cause = notice + severance

The compliance lesson: a foreign decision upholding a dismissal does not predetermine the French outcome on identical facts. Mechanically transposing the Spanish reasoning to a French subsidiary would expose the employer to the proportionality review, which was absent or more lenient in the commented case.

French Disciplinary Procedure: The Non-Negotiable Steps

Before any sanction for a remote-work breach, the procedure under Article L.1332-1 et seq. of the French Labour Code applies:

Summons to a preliminary interview (entretien préalable) — by registered letter or hand delivery, stating the date, place, purpose, and the right to be accompanied (L.1332-2).
Preliminary interview — presentation of the grievances, gathering of explanations, minimum period of five business days after receipt of the summons.
Notification of the sanction — reasoned, dated, sent within the legal time limit after the interview.
Compliance with the limitation period — misconduct cannot be sanctioned beyond two months from the date the employer became aware of it (L.1332-4).

The procedural trap specific to remote work: the two-month limitation period runs from the awareness of the absences. If the employer discovers old remote connections, it can only sanction the facts of which it became aware within the two months. Hence the importance of timestamping not only the instruction, but also the date the breach was discovered.

What the Firm Checks Before Securing a Remote-Work Termination

On this type of matter, DAIRIA works along three lines: auditing the remote-work charter and its enforceability, reconstructing the evidentiary chain (instruction, factual reality, absence of tolerance), and classifying the sanction (serious misconduct vs. real and serious cause) in light of proportionality.

For upstream framing questions — which article grounds the obligation to return, which limitation period applies, which case law governs remote-work insubordination — DAIRIA AI provides sourced answers citing the French Labour Code and relevant decisions, and directs you to the checks to be carried out. It equips the HR director to understand the regime; litigation analysis and termination strategy are handled by our lawyers.

Frequently Asked Questions

Can an employee claim remote work as an acquired right?

No. Under French law, remote work results from an agreement between the employer and the employee or from a charter (Article L.1222-9 of the French Labour Code). Outside the exceptional circumstances provided for by this text, the employee has no unilateral right to work remotely, and the employer may require a return to the workplace.

Can the employer’s past tolerance block a dismissal for unauthorized remote work?

Yes, if it has created a custom (usage). An employer who allowed an employee to work remotely without reacting for several months exposes itself to reclassification as dismissal without real and serious cause. It must first notify in writing the end of the tolerance and set a return date before any sanction.

What time limit applies to sanctioning remote-work absences discovered late?

The employer has two months from the awareness of the misconduct (Article L.1332-4 of the French Labour Code). For old remote connections, only the facts brought to its attention within this period may be sanctioned — hence the value of precisely dating the discovery of the breach.

Does 20 years of seniority turn serious misconduct into simple real cause?

It does not exclude the misconduct, but it weighs on the proportionality review conducted by the judge (Article L.1331-1). A first breach in an employee with no disciplinary history over a long period frequently shifts from serious misconduct toward real and serious cause, with notice and severance.

What evidence must be produced to establish remote-work insubordination?

Three cumulative elements: the written and dated instruction to return on-site, proof of the actual absence (badge records, VPN connections, schedules), and the absence of any admissible justification from the employee. Managerial conviction is not enough: the judge requires enforceable timestamped evidence.

Does a foreign decision upholding a dismissal apply to a French subsidiary?

No. The solution adopted by a Spanish court has no authority under French law. On identical facts, the French judge would apply its own proportionality review (Article L.1331-1) and its own evidentiary regime (L.1235-1), potentially more protective of the employee.

Yes, systematically. The disciplinary procedure under Article L.1332-1 et seq. of the French Labour Code requires a written summons, a preliminary interview respecting a minimum period of five business days, and then a reasoned notification. Any procedural failure weakens the sanction, regardless of the merits.