Newsletter No. 118 – October 2018
Schedule of labor courts compensation: conformity to article 10 of convention No. 158 of the International Labor Organization.
In a judgement delivered on 26 September 2018, the Labor court of Le Mans ruled on the conventionality of the schedules of compensation in case of dismissal without real and serious cause, provided for at article L. 1235-3 of the Labor code. The councilors considered that these schedules conformed with the principles stated by article 10 of the ILO convention No. 158, according to which compensation paid in case of unjustified dismissal must be “adequate” or “take any other form of remedy considered as appropriate” (CPH Le Mans, Trade Section, 26 September 2018, No. 17/00538).
Settlement: nullity of a settlement concluded in the absence of a prior notification of the dismissal by registered letter with acknowledgement of receipt.
In a judgement given on 10 October 2018, the French Supreme Court (Cour de cassation) stated as a reminder that the notification of dismissal by registered letter with acknowledgement of receipt is a condition of validity of the settlement. In this case, the letter of dismissal had been delivered to the addressee in person. The Cour de cassation considered that the settlement concluded afterwards was null (Cass. Soc., 10 October 2018, No. 17-10.066).
Economic redundancy: the non-setting up of a staff representative structure causes harm to the employees.
The employer who is going through an economic redundancy procedure, although he or she has not taken, despite being legally bound to, all the steps necessary to set up a staff representative structure and without a defaulting statement having been drawn up, is guilty of misconduct causing harm to the employees, thereby deprived of a possibility to be represented and to have their interests be defended (Cass. Soc., 17 October 2018, No. 17-14.392).
Professional elections: application of the principle of the personal exercise of the right to vote in case of electronic voting.
The Cour de cassation states as a reminder that the use of electronic voting for professional elections does not allow to derogate from the general principles of electoral law and, in this case, to the principle of the personal exercise of the right to vote. Hence, the fact for two employees, duly informed of the personal and confidential nature of the vote, to have entrusted their voting key to a third person for the latter to vote for them, leads to the annulment of the elections (Cass. Soc., 3 October 2018, No. 17-29.022).
Collective mutually agreed termination: first decision given by the administrative court on the measures introduced by the order No. 2017-1387 of 22 September 2017.
In a judgement delivered on 16 October 2018, the Administrative tribunal of Cergy-Pontoise ruled, for the first time, on the legality of a decision validating a collective mutually agreed termination agreement. This judgement provides some clarification on the implementing rules of the procedure of validation of collective mutually agreed termination agreements by the Dirrecte and, notably, on the time limit to inform the administration about the opening of negotiations in order to conclude an agreement, on the consequences of the absence of a consultation of the CSE and the CHSCT and of the existence of economic grounds which originated the conclusion of the collective mutually agreed termination agreement (TA Cergy-Pontoise, 16 October 2018, No. 1807099).
Non-compete clause: independence of the mobility clause and the non-compete clause.
In this case, the employee’s employment contract contained a mobility clause applicable on national territory, along with a non-compete clause applicable to the “département [a French administrative division] within the Nord-Pas-de-Calais region and its bordering départements, or any other region in which the employee would be required to undertake his activity”. The trial judges considered that implementing the mobility clause had the automatic effect of extending the scope of the non-compete clause, so that the latter was illicit. The Cour de cassation quashed the decision of the court of appeal and considered that the non-compete clause was licit, because it was limited in time and space (Cass. Soc., 26 September 2018, No. 17-16.020).
Health and safety: conditions of giving effect to the employer’s liability based on his or her safety performance obligation.
The sole noting of remarks with a racist overtone which an employee has been the victim of in his place of work is not enough to sentence the employer for breaching his safety performance obligation. The judges must seek to assess whether any preventive measures, along with measures aiming at punishing these wrongdoings, have been implemented (Cass. Soc., 17 October 2018, No. 16-25.438).
Social security: : vote of the social security financing bill for 2019 by the National Assembly, at first reading, on 30 October 2018.
Reduction of employee contributions on overtime and additional hours, reduction of the employer social contributions, 100% coverage of optical, audiology and dental healthcare expenses, are, at this stage, the main measures of the PLFSS for 2019.
Social policy: vote of the PACTE bill by the National Assembly, at first reading, on 9 October 2018.
The action plan for companies’ growth and transformation (PACTE) contains measures aiming at harmonizing the rules for counting staff and for thresholds crossing. It also contemplates removing the forfait social (a corporate social contribution) on equity participation for companies of less than 50 employees and on profit-sharing for companies of less than 250 employees. It shall be examined by the Senate (Sénat) in January 2019.