Newsletter No. 82 – October 2015

Staff representatives asked the administrative court to cancel the approval of an employment preservation plan (“PSE” in French), in particular on the grounds that their request for the assistance of a chartered accountant at the expense of the employer had been refused by the bankruptcy receiver. The French Council of State has recognized that “as the sole employee representative body was thus deprived of one of its rights [under the French Labour Code], it could not be deemed, in principle, to have been enabled to express a fully informed opinion.” The employment preservation plan should therefore not have been approved. However, in this case, the French Council of State adopted a more measured ruling: since the company was in judicial liquidation, it deemed the procedure to be acceptable, insofar as the employee representative body had been able to have recourse to a chartered accountant, albeit at its own expense; the latter had been able to conduct their mission and be fully involved with the procedure (CE, October 21, 2015, no. 382633).

Employees dismissed due to being physically unfit for their job and unable to be redeployed following an occupational accident may no longer claim compensation for loss of their job and pension rights. Indeed, the French Supreme Court has now reversed its former position, ruling that “any claim for compensation for loss of job and/or pension rights, including in the event of dismissal of the employee on the grounds of physical unfitness, is in fact equivalent to seeking compensation for the consequences of the occupational accident” (Cass. Soc., October 6, 2015, no. 13-26.052).

Non-professional judges from Labour courts (“conseillers prud’hommes”) benefit from the same protection against termination of their employment contract as a company staff representative. However, the Supreme Court has previously ruled that a “conseiller prud’hommes” cannot invoke this protection if they have not informed their employer of their office, at the latest during their pre-dismissal meeting (Cass. Soc. March 26, 2013, no. 12-20.269). In the present case, it has taken a similar position with respect to an employee who had not informed her employer that her office of “conseiller prud’hommes” had been renewed, such that she could not therefore legitimately blame her employer for failing to ask the labour inspector to validate the mutually agreed termination of her employment contract (Cass. Soc., September 30, 2015, no. 14-17.748).

The French Supreme Court has ruled that “retirement is a unilateral action by which the employee clearly and unambiguously demonstrates their desire to terminate the employment contract; […] if an employee does not invoke improperly formed consent as grounds for annulment of their retirement, but does call their retirement into question on the grounds of alleged acts or omissions on the part of the employer, the judge must, if circumstances prior to or contemporaneous with the employee’s retirement indicate that this was ambiguous on the date upon which it was decided, view it as termination of the employment contract due to the employer’s behaviour, with the same effects as unfair dismissal if the facts invoked justify doing so.” This ruling transposes the usual position taken when considering resignations to retirement (Cass. Soc. September 30, 2015, no. 13-11.858).

If a protected employee is dismissed, the administrative tribunal is the competent court if they wish to dispute the authorization of their dismissal. In this case, an employee whose redundancy had been properly authorized by the labour inspector brought the matter before the ordinary court to request recognition of the circumstance of co-employment and have their dismissal annulled. The court of appeal dismissed the case, ruling that “the interested party had not brought the matter before the administrative tribunal; therefore, the ordinary court was not competent to assess the claim relating to the existence of a co-employer.” The Supreme Court quashed this ruling and authorized the employee to bring a claim for recognition of co-employment before the ordinary court, on the grounds that the administrative ruling authorizing dismissal did not address the circumstance of co-employment (Cass. Soc., September 30, 2015, no. 13-27.872).

Articles L. 2315-3 and L. 2325-7 of the French Labour Code state that “time spent for trade union duties is deemed to be working time as of right, and paid at the normal time. Any employer wishing to dispute the use made of time used for this purpose shall bring the matter before the ordinary court.” In view of this, the Supreme Court has ruled that failure to pay hours devoted by a staff representative to trade union duties constitutes grounds for termination of the employment contract due to the employer’s behaviour (Cass. Soc., October 14, 2015, no. 14-12.193).

A collective agreement concluded at the company level may specify a scope smaller than that of the entire company for the application of criteria establishing the order of any redundancies (Cass. Soc., October 14, 2015, no. 14-14.339).

Courts may now order rulings against employers (both natural and legal persons) who have used illegal labour to be made public. All such rulings will be placed online on the French Employment Ministry’s website (Decree no. 2015-1327 dated October 21, 2015, French Official Journal dated October 23).

The number of interns a company may host has been set as follows:

– 15% of the headcount for companies with 20 or more employees ;

– 3 interns for companies with a headcount of less than 20 (Decree no. 2015-1359 dated October 26, 2015, French Official Journal dated October 28).