Newsletter No. 100 – April 2017

Prior to 1 January 2017, an employee was to benefit from a pre-recruitment medical examination along with, every 24 months, periodical medical examinations organized by the occupational doctor.  The French Supreme Court (Cour de cassation) decides, shedding a new light on the matter, that the absence of these compulsory medical visits constitutes a failure which does not prevent the pursuance of the employment contract.  Hence, such a ground may not justify the termination of the employment contract or the due taking note of the breach of contract (Cass. Soc., 29 March 2017, No. 16-10.545; Cass. Soc. 30 March 2017, No. 15-24.142). 

An association reproached the URSSAF for having reinstated the Fillon reduction in the basis of the social contributions and taxes, along with the gift certificates and gifts in kind distributed to the employees at Christmas time in 2010 and 2011. The judges of first instance ruled in its favor, considering that, pursuant to a ministerial direction of 17 April 1985, gifts and gift certificates distributed to an employee could be excluded from the basis of the contributions when they were distributed in relation to an event.  Furthermore, an Acoss circular letter of 2011, reusing the ministerial letter of 12 December 1988, creates a presumption of non-subjection for the gift certificates and gifts distributed to an employee in the course of a calendar year, provided the amount allocated during the year does not exceed 5% of the social security monthly cap, which was the case here (Cass. Soc., 30 March 2017, No. 15-25.453).

The head of a university-affiliated hospital had refused to grant the expert appointed by the CHSCT access to the operating room during surgery, and to the daily medical teams’ meetings on account of professional confidentiality.  The CHSCT and the expert then referred the matter to the judges in order to be granted such access.  The trial judges, followed by the Cour de cassation, considered that this expert was not related to the health facility nor was he acting in the health system for the purpose of patients care, so that he could not claim being bound by medical confidentiality.  In addition, the Cour de cassation noted that the court of appeal “observed on the one hand that the ground for having recourse to the expert assessment was the increase in the workload and the unsuitability of the premises, on the other hand that the expert had means of investigation such as hearing the agents, examining the schedules and visiting the premises in the absence of the patients, so that these means were sufficient for the carrying out of his mission” (Cass. Soc. 20 April 2017, Nos. 15-27.927 and 15-27.955).

Issued pursuant to the law No. 2016-1691 of 9 December 2016 relating to transparency, the fight against corruption and the modernization of economic life, a decree provides that as from 1 January 2018, the companies having more than 50 employees will have to set up a procedure of collection of the alerts.  Regarding groups of companies, said procedure may be common to several companies.  The appointing of a referent, who may be outside the company, shall also be mandatory.  Finally, the procedures put in place shall “be the subject of an adequate publicity in order to allow the personnel and external and occasional employees to have sufficient knowledge thereof” (D. No. 2017-564 of 19 April 2017, JO of 20 April).

Article R. 2326-3 of the Labor code, as drafted pursuant to the decree of 23 March 2016, subjects the members of the DUP to compliance with an 8-day prior notice to use the mechanisms of accumulation and allocation of delegation hours.  A trade union requested the annulment of the prior notice, as having been created ultra vires.  The French Administrative Supreme Court (Conseil d’Etat) validated this position, considering, on the one hand, that the duration of the prior notice was not excessive, and, on the other hand, that the difference in treatment in comparison to other employee representative bodies was “not obviously disproportionate compared to the balance to institute between the ease of use of this possibility and the good operation of the company”, so that there was no unequal treatment (CE, 31 March 2017, No. 399957).

The National Council of Bars (CNB) referred a priority question of constitutionality to the Conseil d’Etat regarding the status of the new union representative defender, entitled to represent triable persons before the courts of appeal in labor matters.  According to the CNB, these provisions violate the principle of equality before the law, since the union representative defender, bound to an obligation of professional confidentiality that is limited to manufacturing processes, along with a simple obligation of discretion restricted to certain information, does not present confidentiality guaranties as protective of triable persons as are those which lawyers are bound to.  The French Constitutional Court (Conseil Constitutionnel) ruled out this ground, considering that “are granted to the parties, be they represented by a lawyer or a union representative defender, equivalent guaranties with respect to compliance with the rights of the defense and the balance between the rights of the parties” (CC, QPC, 7 April 2017, No. 2017-623, JO of 9 April).

This text, issued pursuant to article L. 8124-1 of the Labor code, provides the general framework of the missions of the agents of the labor inspectorate.  It determines the rules they must comply with, along with the prerogatives and guaranties provided for for the performance of their missions.  Pursuant to this code, the labor inspectorate is bound inter alia, towards each user, to the following rights and obligations:

– Avoidance of conflicts of interest;

– Obligation to be committed to one’s functions;

– Duties of neutrality and impartiality;

– Duty to inform;

– Obligations of discretion, of secrecy and confidentiality (D. No. 2017-541 of 12 April 2017, JO of 14 April).