Newsletter 68 – August 2014

An employee was dismissed for gross misconduct following alcohol testing which proved positive. Said employee challenged their dismissal on the grounds that their employer failed to comply with the provisions of the internal regulations during the testing. In light of these provisions, the Court of cassation held that the employer could only subject the employee to said testing if they presented an apparent state of intoxication, which was not the case here, and concluded that “the Court of Appeal rightly refused to infer anything from the testing which was carried out in violation of said regulations.” (Cass. Soc., 2 July 2014, no. 13-13.757).

In this decision, the Council of State recalled that the labour inspector must verify that “the company’s situation justifies the employee’s dismissal” and specifies that they may not “base their decisions on the employee’s wish to leave the company.” In this case, the court found that no economic difficulties had been proven and concluded that the dismissal should not have been approved. It was pointed out on this occasion that employees with representational duties may “jointly agree with their employer to terminate the employment contract binding them and submit the resulting mutually agreed termination to the approval of the labour inspector” (CE, 2 July 2014, no. 368590).

The Supreme Court specified that a party organised by the employer for the purpose of “presenting the results and outlook of the company and ensuring cohesion within the company” must be considered as part of the employer’s management of its staff, despite the festive atmosphere in which it took place. After assessing in concreto the aim of the event, the Supreme Court concluded that it did not have the character of a social and cultural activity (Cass. Soc., 9 July 2014, no. 13-18.577).

In this case, an employee requested that minutes of elections drafted by a third party and signed by officers in charge of the vote be invalidated. The district court held that, insofar as the minutes were signed by the officers in charge of the vote, it was irrelevant whether it was drafted by a third party. The Supreme Court rejected this argument and instead stated that “if thesecretary is not present during professional elections, minutes must be established by one of the officers in charge of the vote or by one of the electors present chosen by an officer in charge of the vote.” Minutes drafted by a third party are thus liable to be deemed invalid, irrespective of who signs them (Cass. Soc., 2 July 2014, no. 13-60.218).

The legislation provides for an increase in trainee gratuities as of 1 September 2015 from 12.5% to 15% of the maximum hourly rate set by French Social Security for each hour of traineeship. This increase will be implemented in two stages. In addition, the text limits the number of trainees the company may employ. The maximum number of trainees under a training agreement in force at the host organisation will be set by decree on the basis of the number of staff (L. no. 2014-788 of 10 July 2014, JO of 11 July).

The Act of 10 July 2014 combatting unfair social competition transposes certain provisions of Directive 2014/67/EU concerning the posting of workers, and contains provisions aimed at strengthening the legal framework to fight against illegal work, in addition to provisions regulating road transport. In this context, it reinforces the responsibilities of project owners and instructing parties by establishing, in particular in the new Article L.3245-2 of the French Labour Code, financial solidarity in the event of a failure to pay wages or payment that is less than the statutory or contractual minimum wage (L. no. 2014-790, 10 July 2014, JO of 11 July).

The Act on the social economy and solidarity establishes an obligation to provide information to employees, in order to promote small and medium enterprises being taken over by said employees. In companies with 50 to 250 employees, employers wishing to sell their business must first consult the Works Council. At the same time, they must inform employees of their intention to sell their business and specify that they are entitled to submit atakeover bid. Otherwise, any employee may request the cancellation of this sale within two months of the notice of publication. The act likewise complements the Florange Act governing the takeover of sites by providing that companies that fail to seek out buyers in the event of the planned closure of a facility resulting in collective redundancies would be sanctioned by a refusal on the part of the Direccte (district labour department) to validate or approve the Redundancy Plan ((L. no. 2014-856 of 31 July 2014, JO of 1 August).

The law on gender equality notably increase parental leave from six months to one year upon the birth of a first child, provided it is shared by both parents. It also provides protection to the second parent, whose contract may not be terminated during the four weeks following the birth of their child, except in the event of “serious misconduct or inability to maintain (the) contract for a reason other than the birth of the child.”Furthermore, Article L.1153-5 of the French Labour Code is amended, requiring the employer to prevent acts of sexual harassment, but also “put an end (to such acts) and sanction (them)” (L. no. 2014-873 of 4 August 2014, JO of 5 August).

On 31 July 2014, the Constitutional Council overruled for procedural reasons two articles (articles 7 and 10) of the Act establishing new sanctions for discriminatory dismissals (Cons. Constit. no. 2014-700 DC of 31 July 2014).