NewsletterGalion Newsletter No.193 – January 2025
ECONOMIC DISMISSAL: The lack of selection criteria invalidates a redeployment offer and entails the consequences of a dismissal without real and serious cause
A company had implemented an employment safeguard scheme that was subject to a majority agreement and had been validated by the administrative authority. Employees at risk of dismissal for economic reasons had received a list of redeployment positions and agreed to a professional securing contract before taking the matter to the labor court. They reproached the employer for failing to specify the selection criteria in the event of multiple applications for the same redeployment position, thus rendering the dismissal without real and serious cause. The French Supreme Court (Cour de cassation) was requested to address the issue and stated as a reminder that under Article L. 1233-4 §4 of the Labor Code, the employer must make all reclassification efforts to ensure the validity of the dismissal. However, Article D. 1233-2-1 of the same code states that in cases where multiple employees apply for the same position, the redeployment offer must specify the selection criteria. The Court concluded that in the absence of such criteria, the offer is invalid, and the dismissal is without a real and serious cause (Cass. Soc. 8 January 2025, No. 22-24.724).
JUDICIAL TERMINATION AND GUARANTEE OF WAGE CLAIMS: The AGS (wage guarantee regime management association) covers unpaid wage claims in cases of judicial termination due to serious misconduct by the employer that prevents the continuation of the contract.
A female employee filed a claim with the labor court seeking judicial termination of her employment contract, before being dismissed for economic reasons following the company’s judicial liquidation. Initially, the labor court pronounced the judicial termination at the employer’s fault. Then, the Court of Appeal of Rouen dismissed her claims. She then appealed to the Cour de Cassation, arguing that restricting the AGS guarantee to contract terminations decided solely by the judicial administrator infringed the principles of equality and non-discrimination. In response, the Employment Division of the Cour de Cassation, referring to Articles L. 3253-6 and L. 3253-8, §2 of the Labor Code, interpreted in light of Directive 2008/94/CE and a decision by the Court of Justice of the European Union of 22 February 2004, ruled that the AGS “covers unpaid claims resulting from the termination of an employment contract when the employee obtains judicial termination thereof due to the employer’s sufficiently serious misconduct preventing the continuation of the contract, and when the termination occurs during one of the periods specified in Article L. 3253-8, §2 of the same code” (Cass . Soc. 8 January 2025, No. 23-11.417).
INSTITUTIONAL MORAL HARASSMENT: An employer who pursues a policy of destabilizing its employees with the aim of reducing its workforce is guilty of institutional moral harassment.
The France Télécom case began in 2007 when the company began implementing a large-scale workforce reduction plan, accompanied by intense pressure on employees. Between 2007 and 2010, 35 employees committed suicide. In 2019, France Télécom and seven senior executives were found guilty of institutional moral harassment under Article L. 222-33-2 of the Penal Code. The appeal court established that this deliberate policy aimed at deteriorating working conditions to push 22,000 employees to leave. The Criminal Division of the Cour de Cassation upheld the appeal decision, defining institutional moral harassment as “a company policy aimed at deteriorating the working conditions of all or part of the employees in order to reduce the workforce or achieve any other objective” (Cass. Crim. 21 January 2025, No. 22-87.145).
MODIFICATION OF THE EMPLOYMENT CONTRACT AND ECONOMIC DISMISSAL: The termination resulting from an employee’s refusal to accept a modification of their employment contract, proposed for a reason not inherent to their person, amounts to a dismissal for economic reasons.
In this case, a technical support engineer was dismissed after refusing a position as a pre-sales engineer, which involved a modification of his employment contract. The employer justified the dismissal by citing a reorganization linked to the outsourcing of certain activities and claimed to have sought a redeployment solution for the employee. Contesting the validity of this termination, the employee took the matter to the labor court, arguing that the dismissal was without real and serious cause. The Court of Appeal dismissed his claims, but the Cour de Cassation overturned this decision, stating as a reminder that the refusal to modify an employment contract does not, in itself, constitute a real and serious cause for dismissal. Thus, in the absence of an economic justification in accordance with Article L. 1233-3 of the Labor Code, the Court concluded that the dismissal was without real and serious cause (Cass. Soc. 22 January 2025, No. 22-23.468).
TRAVEL TIME: Travel between home and the vehicle pickup point does not constitute actual working time.
An employee hired as a truck driver brought his case before the labor court to claim sums related to the execution of his employment contract. After losing in the Court of Appeal, the employee appealed to the Cour de Cassation, arguing that the travel time to the vehicle pickup location, situated outside his residence or his employer’s premises, should be considered as working time. Upholding the appeal decision, the Cour de Cassation ruled that “travel between home and work, when using the employee’s personal vehicle to reach a single work start location“, does not amount to actual working time (Cass. Soc. 15 January 2025, No. 23-14.765).
TEMPORARY EMPLOYMENT CONTRACT: Failure to comply with the waiting period and the grounds for using assignment contracts may justify their reclassification as a permanent contract (CDI).
In this case, an employee had been hired by a temporary employment agency and assigned to a user company under around fifteen assignment contracts, because of a temporary increase in activity. He then entered into a fixed-term contract (CDD) with the same company, for the same reason, without complying with the waiting period set out in Article L. 1251-36 of the Labor Code. The employee took the case to the labor court, seeking the reclassification of his contractual relationship as a CDI. The Court of Appeal rejected his request, ruling that neither the non-compliance with the grounds for using assignment contracts, nor the absence of a waiting period between the contracts justified a reclassification as a CDI. The Employment Division of the Cour de Cassation overturned this decision, specifying that only the use of an assignment contract based for urgent work related to safety measures authorizes non-compliance with the waiting period. The use of an assignment contract for an invalid ground and the failure to observe the waiting period therefore justified the reclassification of the assignment contracts as a CDI. The Court also clarified that compliance with the waiting period was the sole responsibility of the temporary employment agency, not the user company (Cass. Soc. 15 January 2025, No. 23-20.168).