Newsletter No. 93 – September 2016

Since the law securizing employment of June 14^th, 2013, the works council can render its opinion following a consultation within a deadline which cannot be suspended or interrupted. Upon expiration of this deadline, it is deemed to have been duly consulted upon and rendered a negative opinion. In two decisions reached on the same day, the Supreme Court brings significant clarification as to such deadline:

– In the first case, it considers that such deadline is also binding upon the judges ruling on the merits, who must rule upon the case prior to the expiration of such deadline;

– In the second case, it indicates that « if, in case of specific difficulties to access information necessary to the delivery of the grounded opinion by the works council, the judge can decide to extend the deadline provided for in Article L. 2323-3 of the Labour Code, no legal provision authorizes him to grant an additional deadline after the expiration of the initial deadline”. Nevertheless it states that the employer and the works council can enter into an agreement, subject to the majority of the elected incumbent members, to extend this deadline (Supreme Court., Lab. Section, 21 September 2016, n°15-13.363 and 15-19.003).

Referring to a constant principle, the Supreme Court states that « different treatment resulting from a unilateral undertaking by the employer can occur between employees from different sites and carrying out equal work or of equal value only where underlain by objective reasons, the reality and relevance of which are controlled by the judge”. For the first time, the Supreme Court indicates in a significant decision that the difference in the cost of living constitutes an objective relevant justification to treat employees from two distinct sites differently (Supreme Court., Lab. Section, 14 September 2016, n°15-11.386).

A court of appeal had reduced the amount of the indemnity in lieu of notice period and related paid leave, on the ground that the employee had secured employment straight after her constructive dismissal. The Supreme Court reverses this decision. Indeed: « the judge who considers that the constructive dismissal had the effects of an unjustified dismissal must allocate to the employee who so requests the notice indemnity and related paid leave, the severance indemnity and the damages to which he would have been entitled in case of an unjustified dismissal» (Supreme Court., Lab. Section, 14 September 2016, n°14-16.663).

An employee, in charge of cleaning and maintaining the premises of a private hospital, claimed that her fixed-term employment contract was in fact a full-time indefinite-term employment contract and claimed her reinstatement in the company. Although they acknowledged that the dismissal was null and void, the judges ruling on the merits dismissed her claim for reinstatement, on the ground that the private hospital had entrusted a third company with the whole of the cleaning of its premises, so that the position held by the employee no longer existed within the company, which made her reinstatement, claimed after three years, impossible. According to the Supreme Court, « the fact that the cleaning of the premises was entrusted to a service provider does not constitute a material impossibility for the employer to reinstate the employee in her position or, failing this, in an equivalent position, irrespective of the fact that the employee waited three years to claim her reinstatement» (Supreme Court., Lab. Section, 14 September 2016, n°15-15.944).

Pursuant to Article L. 3121-1 of the labour code, « the effective working time is the time during which the employee is at the employer’s disposal and complies with its directives without being able to freely carrying out personal occupations ».  In this case, an employed doctor, who had to remain in a housing imposed by the employer in order to be able to intervene in case of emergency, claimed overtime for the time spent at his employer’s disposal. According to the Supreme Court, this constraint « did not prevent him from carrying out personal occupations », so that « the disputed period did not constitute effective working time » (Supreme Court., Lab. Section, 8 September 2016, n°14-23.714).

The Supreme Court validates the collective bargaining agreement providing for the recourse to all-inclusive working time in days according to the following:

– The provisions ensure observance of daily and weekly rest;

– The follow-up and control of the workload are organized on a monthly basis through a statement signed by the hierarchical superior and approved by the human resources department;

– There is a reporting system to hierarchy in case of difficulty, with the possibility to request a meeting with the human resources.

According to the Supreme Court, such an agreement complies with the requirements relating to the right to health and rest (Supreme Court., Lab. Section, 8 September 2016, n°14-26.256).

The Supreme Court has considered for a few years that the concealed work offense is not automatic. In order to characterize such offense, it requires the proof that the employer voluntarily mentioned a number of hours inferior to the actual one on the pay slip (Supreme Court., Lab. Section, 23 January 2013, n°11-23.428). It indicates here, concerning more specifically the recourse to the all-inclusive working time in days, that « the will to conceal overtime resulting from the voidance of the covenant relating to the all-inclusive working time does not result from the sole inobservance by the employer of his obligations resulting from the covenant to control the amplitude and workload» ((Supreme Court., Lab. Section, 14 September 2016, n°14-26.099).