Newsletter No. 106 – October 2017

Article R. 4126-1 of the Public safety code provides that “the disciplinary action against a doctor, a dental surgeon or a midwife may be brought before a disciplinary court of first instance only by one of the following persons or authorities: 1° The national council or departmental council of the order on the register of which the practitioner is listed on the date on which the jurisdiction is referred to, acting on their own initiative or following complaints, filed in particular by patients, the local mandatory health insurance bodies, chief or manager health officers of the medical control service set up within a social security fund or body, the associations defending patients’ rights, health system users or persons in a precarious situation, that they communicate […]”.  Several organizations and medical doctors’ unions had requested the removal of the adverb “particularly” from this article.  The French administrative Supreme Court (Conseil d’Etat) dismissed this request on the ground that if this text “thus entitles an employer, prejudiced in a sufficiently direct and certain way by a certificate or an attestation, to file a disciplinary complaint against the doctor who drafted it, the adverb “particularly”, the deletion of which is requested by the claimants, has neither as object or effect to force the prosecuted doctor to breach medical confidentiality to ensure his defense or  to limit his right to defend himself” (CE 11 October 2017, No.403.576).

The French Supreme Court (Cour de cassation) recognizes the dismissal for gross misconduct of an employee who requested the judicial termination of his employment contract from the labor court, if he has been dismissed, not for having appealed the jurisdiction, “but for having manifested, since this appeal, a complete loss of investment in his position, including the cessation of any commercial activity during the first quarter of 2015, for non-compliance with internal procedures and failure to complete all internal mandatory training, and inacceptable behavior towards his colleagues and superiors” (Cass. Soc. 6 October 2017, No.16-11.682).

An employer contested the professional nature of an accident at work that had occurred at 3 a.m. in a nightclub in China, where the employee was carrying out a business mission.  After stating as a reminder that “the employee carrying out a mission is entitled to the protection provided for at article L. 411-1 of the social security code throughout the mission he is accomplishing for his employer, whether the accident occurs in connection with a professional act or an everyday act, unless the employer or the fund is able to prove that the employee had interrupted his mission for personal reasons”, the High jurisdiction notes that “if the presence  [of the employee] in a nightclub and the action of dancing therein is not a professional act as such, given his occupation, the fact remains that it is for the employer to demonstrate that he was in this establishment for a personal reason, the only presence in a nightclub not being enough to demonstrate that there was no link between the latter and the professional activity of the employee” (Cass. Civ. 2, 12 October 2017, No.16-22.481).

According to the High jurisdiction, a company agreement that limits itself to providing that each employee under a forfait jours “shall report his weekly working time in the time tracking system […], that a summary statement of the time worked by each individual shall be issued each month of the M-2 month and communicated to his superiors, that a presentation shall be made each year to the follow-up committee of this agreement, that the rest period between two working days is of at least 11 consecutive hours, and that the employee shall benefit from at least one day of rest per week” is not valid “as it fails to provide for an effective and regular follow-up by the superiors of the summary statements that are communicated to them, allowing the employer to  remedy in due time any workload potentially incompatible with a reasonable duration”.  Consequently, it deduces that “these provisions are not likely to guarantee that the workload range and volume  remain reasonable  and do not ensure a good distribution, time-wise, of the concerned persons’ workload” (Cass. Soc. 5 October 2017, Nos.16-23.106 to 16-23.111).

If the impossibility to redeploy an incompetent employee results from the total and final cessation of activity of the company, and if the latter does not belong to a group, redundancy of this employee is possible (Cass. Soc., 4 October 2017, No.16-16.441).

Under French law, there is a principle of equal treatment between employees of a same company.  The Cour de cassation has just made a reservation concerning this principle by stating that “the differences in treatment between employees belonging to the same company but to distinct establishments, made through company agreements negotiated and signed by the representative trade unions within the company, entrusted with the defense of this whole company’s employees’ rights and interests, and in the empowerment of which the latter participate directly by their vote, are presumed to be justified so that it is for whoever contests them to prove that they are unconcerned by any consideration of a professional nature” (Cass. Soc. 4 October 2017, Nos.16-17.517 and 16-17.518).

According to the claimants, the provisions of article L. 4614-13 of the Labor code, by providing for a timeframe of 15 days from the deliberation of the CHSCT deciding on the expert assessment, without imposing on it to set its estimated cost, scope or timeframe, would deprive the employer of any effective judicial remedy.  The Constitutional Council (Conseil Constitutionnel) has validated the contested provisions, in particular because article L. 4614-13-1 of the labor code allows the employer to contest the final cost of the expert assessment within 15 days from the date on which he has been informed thereof.  “Then, should it be confirmed, the impossibility for the employer to contest the estimated cost of this expert assessment does not constitute an infringement of the right to an effective judicial remedy” (CC, 13 October 2017, No.2017-662 QPC, JO dated 15 October).