Newsletter No. 101 – May 2017

Solicitous about not hindering the use of the mutually agreed termination, the French Supreme Court (Cour de cassation) admitted for the first time, in two decisions of 12 May 2017, that a decision of non-approval of a mutually agreed termination may validly be withdrawn by its author in favor of a contrary decision of approval by giving it full effect.  For this purpose, it considers that the initial decision of refusal did not create any acquired rights to the benefit of the parties or a third party, and consequently could not be subject to a withdrawal by its author (Cass. Soc., 12 May 2017, No. 15-24.220 and 15-24.221).

An employee referred her case to the labor court on 22 February 2010 in order to obtain the judicial termination of her employment contract, and was then declared unfit for her position on 11 October 2010.  She was dismissed on 23 November 2010 on grounds of inability and impossibility of redeployment.  The Court of appeal rejects the request for payment of a remaining part of the severance pay, stating that the employee may not claim that the amount of her indemnity be calculated on the basis of the salary she would have received had her contract not been suspended.  In a decision of 23 May 2017, stamped “PBRI”, the High Court overturned the decision of the Court of appeal of Nîmes, specifying that “the reference salary to be taken into consideration for the calculation of the legal or contractual severance pay is, according to the most favorable formula for the employee, that of the twelve or three last months preceding the sick leave” (Cass. Soc., 23 May 2017, No. 15-22.223).

By two decisions rendered on 11 May 2017, the Cour de cassation clarified the conditions in which the employer must redeploy unfit employees.  In a first decision it ruled that, if an employee, unfit for his position, refused ten position propositions due to their geographic remoteness and expressed the wish to remain in the region of his initial employment, he did not actually have the will to be redeployed at the group level.  It concluded that the employer had carried out a serious redeployment search. In another decision, regarding the nature of the proposed position, it considered that “all the tasks entrusted to trainees who are not employees of the company, but who are taking a training course within it, did not constitute a position available for the redeployment of an unfit employee” (Cass. Soc., 11 May 2017, No. 15-23.339 and 16-12.191).

Issued pursuant to the law No. 2015-990 of 6 August 2015, relating to the growth, activity and equality of the economic chances, known as « Macron Law », a decree provides in particular that the provisions relating to the conditions of referral to the labor court are from now on applicable to third party proceedings, which shall be directly made before the judgement panel of the labor court.  In addition, this same decree clarifies the effects of the closing ordinance, after which no conclusion and no other document may be submitted, failing which they shall automatically be deemed inadmissible.  The decree adds that, on the contrary, requests to voluntarily intervene, conclusions relating to remunerations payable after the closing ordinance, if their count may be subject to no serious contestation, along with requests to revoke the closing ordinance, are admissible (D. No. 2017-1008 of 10 May 2017, JO of 11 May).

In the official journal (journal officiel) of 7 May 2017, a decree relating to the reinforcement of the rules aiming at fighting against illegal international provisions of services was published.  It thus reinforces the obligations of project owners and ordering entities, when they use an international provision of services.  The decree determines in particular the conditions in which the liability of the project owner may be triggered in relation with the whole sub-contracting chain with respect to compliance, by the sub-contractor, of the obligation of prior declaration of the secondment.  These new provisions shall enter into force on 1 July 2017 (D. No. 2017-825 of 5 May 2017, JO of 7 May).

Issued pursuant to the law No. 2016-1088 relating to the modernization of the social dialogue and to the securitization of the professional careers, known as “Labor Law”, which modifies in particular the procedure of contestation of the occupational doctor’s opinions relating to inability, the decree of 10 May 2017 clarifies its contours.  If it is provided for that the occupational doctor is not a party to the dispute, the case shall no longer be referred to the work inspectorate, but directly to the labor court gathered in its summary formation.  Article R. 4624-45 of the labor code thus provides that: “the decision of the labor court replaces the elements of medical nature which have justified the contested opinions, propositions, written conclusions or indications” (D. No. 2017-1008 of 10 May 2017, JO of 11 May).

An administrative order of 4 May was issued to approve the agreement of 14 April 2017 relating to unemployment insurance, that shall enter into force progressively as from 1 October 2017 and for a 3-year term.  This agreement modifies certain rules of indemnification, in particular the conditions to benefit from the allowances: the affiliation duration shall be of at least 88 worked days, instead of the current 122 days (A. of 4 May 2017).

A decree of 6 May 2017 reorganizes the current provisions relating to the action brought against a decision ruling only on competence, and not on the content, which, up until now, was the challenge. This decree removed, plain and simple, this remedy.  The new article 83 of the French Civil procedure code now provides: “when the judge ruled on competence without ruling on the content of the dispute, his decision may be appealed” (D. No. 2017-891 of 6 May 2017, JO of 10 May).