Newsletter No. 103 – July 2017

A company reproached the URSSAF for having notified it a redressment in relation to the sums paid as transactional compensation following the early termination of a CDD.  According to the French Supreme Court (Cour de cassation), “the sums granted, even as transactional sums, in case of early termination of a fixed-term employment contract are not among the ones restrictively enumerated by article 80 duodecies of the tax general code to which refers article L.242-1 of the social security code”, so that they are included in the contributions basis (Cass. Civ. 2, 6 July 2017, No. 16-17.959).

According to the High jurisdiction, “in application of articles L. 1142-4, L. 1143-1 and L. 1143-2 of the labor code […], a collective agreement may provide to the benefit of female employees only, half a day off on the occasion of the international women’s day, if such measure aims at establishing equality of opportunity between men and women by remedying actual inequalities impacting women’s opportunities” (Cass. Soc. 12 July 2017, No. 15-26.262).

A company reproached the CPAM for having taken charge, based on the professional legislation, of the death of an employee that occurred while he was in the waiting room of the occupational doctor for a periodic visit.  The Cour de cassation approves of the position of the Social security, inasmuch as “it resulted from its findings that the employee had been the victim of a feeling of faintness when he was in the premises of the occupational health services, awaiting a periodic examination inherent in his employment contract, so that he was to benefit from the presumption of imputability” (Cass. Civ. 2, 6 July 2017, No. 16-20.119).

The Cour de cassation considers that, if an employee is being prosecuted before the criminal courts for facts accomplished at the request, and under the control, of the employer, the latter shall bear the costs incurred by the employee for his defense.  In this case, the employee had been prosecuted for aiding and abetting in the misuse of company assets.  The facts had been executed at the request, and under the control, of the chairman of the board of directors and the employee had never concealed the least of these operations that had all been validated by the steering and supervisory board, so that he “had acted within his professional activity to successfully complete an operation wished for by his employer, and without having abused his position for personal use” (Cass. Soc. 5 July 2017, No.15-13.702).

The Cour de cassation carries on with its case law related to the prejudice suffered by the employee.  In this case, after reminding that “the existence of a prejudice and the assessment thereof is a matter for the unfettered discretion of the trial judges”, it agrees with a court of appeal having dismissed an employee of her claim for damages for non-payment of her extra hours, on the ground that the latter had not brought any element to substantiate the alleged prejudice (Cass. Soc. 29 June 2017, No.16-11.280).

An employer was ordered to pay termination allowances to a protected employee, although dismissal for willful misconduct had been authorized by the labor inspector.  The trial judges reproached the employer for having not referred to the administrative authorization in the letter of dismissal, and having not specified the grounds for dismissal.  The Cour de cassation adopts the same position, reminding that “when the dismissal of a protected employee occurred after an administrative authorization which was not appealed against, the letter of dismissal is sufficiently substantiated if it refers either to the administrative authorization or to the ground for which the authorization has been requested”, which was not the case here (Cass. Soc. 5 July 2017, No. 15-21.389).

The provisions of article L. 2254-2 of the Labor code, resulting from the Labor Law (Loi Travail) dated 8 August 2016, allow an employer to dismiss an employee who refuses a modification of his employment contract resulting from the application of the agreement on the preservation and development of employment.  If these provisions provide that such a dismissal rests on a specific ground that constitutes a real and serious cause, the unions consider that “they infringe on rights and liberties guaranteed by the Constitution, especially in that they do not set limits on the choice of the employer to initiate a procedure of dismissal against one or more of the employees having refused the modification of their employment contract resulting from the application of a company agreement entered into in view of the preservation or the development of employment”.  The issue was thus submitted to the French Constitutional Council (Conseil Constitutionnel) (CE, 19 July 2017, No. 408379).

Article L. 2232-12 4^th paragraph of the Labor code provides that « the consultation of the employees, which may be organized by electronic means, takes place in compliance with the general principles of electoral law and according to the method provided for by a specific protocol concluded between the employer and the signatory organizations”.  According to the CGT-FO, the fact of leaving it to the employer and the unions signatory of the agreement to determine the method of consultation of the employees, would infringe on the rights and liberties guaranteed by the Constitution. A similar question is expressed concerning the provisions of article L. 2232-21-1 of the Labor code, relating to the agreement signed by an elected staff representative at the works council or at the personnel unique delegation (DUP), or, failing that, by an appointed staff representative (CE, 19 July 2017 No. 408221).