Newsletter No. 105 – September 2017

Article L. 3111-2 paragraph 2 of the Labor code provides that “are considered as executive officers the professionals who are entrusted with responsibilities the importance of which implies a great independence in the organization of their schedule, who are entitled to make decisions in a widely autonomous way and who receive a remuneration ranking among the highest levels of the remuneration systems of their company or establishment”.   The employees falling under this definition are not subject to the applicable regulations on working hours.  For the French Supreme Court (Cour de cassation), an employee may not be considered as an executive officer if his offer of employment refers to a fixed number of working days (Cass. Soc. 7 September 2017, No. 15-24.725).

Traditionally, case law considers that the offer of employment specifying the proposed position and the start date constitutes an employment contract.  As from now, the Cour de cassation draws a distinction between the offer and the unilateral promise of employment contract.  Indeed, it has just decided that “the act whereby an employer proposes an undertaking specifying the position, the remuneration and the start date and expresses the will of its author to be bound in case of acceptance, constitutes an offer of employment contract, which may be freely withdrawn as long as it hasn’t reached its addressee; that the withdrawal of the offer prior to the expiry of the period fixed by its author or, failing such a period, the end of a reasonable period, prevents the conclusion of the employment contract and could trigger the tortious liability of its author”.  However, it judges that “the unilateral promise of employment contract whereby a party, the promisor, grants to the other one, the promisee, the right to opt for the conclusion of an employment contract, of which the position, the remuneration and the start date are determined, and for the formation of which only the consent of the promisee is lacking; […] the withdrawal of the promise within the period of time given to the promisee to opt does not prevent the formation of the promised employment contract” (Cass. Soc. 21 September 2017, No. 16-20.103 and 16-20.104).

An employee, who had carried out many successive temporary assignments renewed due to a temporary activity increase within a same company, referred, prior to the expiry of his last mission, his case to the employment tribunal (conseil de prud’hommes) for a summary order to obtain the reclassification of his work relationship into an indefinite contract (CDI) and the continuation of his contractual relationship.  The judge in summary proceedings said that nothing justified summary proceedings for to the reclassification request, but ordered the continuation of the contractual relationship until a decision on the merits of the case was rendered.  The employment tribunal ordered the reclassification of the work relationship into a CDI.  The court of appeal first invalidated the summary order in that it had ordered the continuation of the employment contract, and then ordered the reclassification of the assignment contracts into a CDI and ordered the continuation of the work relationship.  The trial judges considered, indeed, that the termination of the employment contract reclassified as a CDI was null because the employee had taken legal action to enforce his fundamental freedom to remain in employment following a breach of the provisions relating to the recourse to temporary work.  The High jurisdiction quashes this judgement and specifies “the right to employment does not constitute a fundamental freedom that would justify the continuation of the employment contract beyond the end of the temporary assignment in the event of an action aiming at the reclassification into an indefinite contract” (Cass. Soc. 21 September 2017, No. 16-20.270 and 16-20.277).

In a case concerning Romania, the ECHR sanctioned the monitoring of the employee’s emails because the latter did not have sufficient guaranties for the protection of his privacy.  According to the ECHR, such a monitoring would nonetheless be possible, provided the employee is informed thereof, one the one hand, and that the judges control the legitimacy of this monitoring, on the other hand.  This decision is in line with the case law of the Cour de cassation, since, in France, the judges are already required to verify that the monitoring of the employee’s emails is justified and proportionate to the sought-after objective (ECHR, 5 September 2017, Barbulescu v/ Romania).

Until 27 September 2017, the severance pay was equal to a fifth of a month’s salary per year of seniority, to which were added two fifteenths of a month per year beyond ten years of seniority.  As from now,                article R. 1234-2 of the Labor code provides that the severance pay cannot be less than a fourth of a month’s salary per year of seniority for the first ten years and a third of a month’s salary for the years over ten years.  Furthermore, the average salary is calculated on the basis of the last twelve years preceding the dismissal, or, when the length of service is less than twelve years, on all the months preceding the dismissal (D. No. 2017-1398 of 25 September 2017, Official Journal dated 26 September).

This labor law reform, which as of today consists of five orders, centers around, according to the Ministry of Employment, “four key lines”:

-Bringing pragmatic solutions for the very small and medium-sized companies;

-Giving the ability to companies and employees to anticipate and adapt in a simple, quick and secured way;

-Creating new rights and new protections for employees;

-Bringing new guaranties to union representatives and elected staff representatives who engage in social dialogue (L. No. 2017-1340 of 15 September 2017, Official Journal of 16 September; Ord. No. 2017-1385, 2017-1386, 2017-1387, 2017-1388 and 2017-1389 of 22 September 2017, Official Journal of 23 Sept).

 

We will soon publish a special issue dedicated to the labor law reform.