Newsletter No. 107 – November 2017

Medical visitors and pharmaceutical representatives of a pharmaceutical company referred their requests for compensation with respect to the occupancy of part of their personal accommodation for personal purposes to the employment tribunal.  The employer reproached the trial judges for having acceded to these requests.  According to the French Supreme Court (Cour de cassation), “the employee is entitled to lay claim to compensation for the occupancy of his domicile for professional purposes if professional premises are not effectively made available to him”.  In this case, it thus agreed with the court of appeal decision which had noticed that “field personnel [had to], in particular, manage orders, prepare their visits and give an account thereof, update their information, reply to their emails, get access to the distance mandatory training sessions, although they [did not have] a place within the company to carry out these tasks, and on the other hand, decided that if the concerned persons [could] carry out certain common tasks using a Wi-Fi connection or a 3G stick allowing them to get a connection anywhere, the employer [could] not however claim that the carrying out by the employees of their administrative tasks at their domicile only resulted from their choice alone, given the diversity of these tasks and the need to be able to seriously dedicate oneself to them in good conditions (Cass. Soc. 8 November 2017, No.16-18.499).

An employee, criminally convicted for sexual and moral harassing several other employees, reproached in particular the trial judges for having also judged that he had participated in the loss suffered by his employer.  For the Cour de cassation, “the offense of moral harassment […], along with the sexual harassment wrongful acts […] directly caused a loss to the company […] since he exceeded, to commit them, the hierarchical powers granted to him by his employer whose image he tarnished for the other employees of the [company]”.  In these conditions, for the company to join the civil proceedings as an injured party was admissible and the trial judges rightly sentenced the employee to pay him damages (Cass. Crim., 14 November 2017, No.16-85.161).

The works council and the CHSCT of a company reproached the trial judges for having rejected their request to extend the deadlines that were assigned to them to deliver their opinion on a proposed sale.  The Cour de cassation confirms the inadmissibility of the CHSCT’s requests on the ground that the latter had referred the case to the summary orders judge after the expiry of the three months’ period assigned to the works council to deliver its opinion (Cass. Soc., 15 November 2017, No.15-26.338).

Accepting the consequences of the answer of the CJEU to the interlocutory question relating to the possibility to dismiss an employee wearing the Islamic veil (CJEU, 15 March 2017, No. C-188/15), the Cour de cassation states that “the employer, in charge of ensuring compliance within the work community with all the fundamental freedoms and rights of each employee, is entitled to provide for, in the internal rules of the company […], a neutrality provision prohibiting the visible wearing of any political, philosophical or religious sign at work, if this general and undifferentiated provision is applied only to employees in contact with the clients”.  The High jurisdiction also specifies that “in the presence of a refusal by an employee to conform to such a provision in carrying out her professional duties with the clients of the company, it is a matter for the employer to seek whether, while taking into account the company’s inherent constraints and without the latter having to bear an additional burden, it was possible for it to offer the employee a position not involving visual contact with the clients, instead of dismissing her” (Cass. Soc. 22 November 2017, No.13-19.855).

An 18 July 2016 decree provided that the union defenders carried out their duties “within the jurisdiction of the courts of appeal of the region”.  Several unions requested the annulment of this text as ultra vires “inasmuch as it territorially limits the field of action of the union representatives”.  The French Administrative Supreme Court (Conseil d’Etat) acceded to this request.  Indeed, according to it, “with respect to the objective sought by the legislator, and given, on the one hand, that the parties always had the possibility, prior to the existence of the contested provisions, to being assisted by unions, as part of their free organization, for the appointment of a representative, without regard to his domicile or his workplace, and on the other hand, that the rules of judicial representation provided for at articles 5 and 5-1 of the law dated 31 December 1971 do not apply before the employment tribunals and the courts of appeal deciding matters of employment law, they may be assisted and represented by a lawyer of their choosing whatever his professional residence, the regulatory power made a manifest assessment mistake in limiting the geographic area of jurisdiction of union defenders” (CE, 15 November 2017, No.403535).

An agreement on a fixed number of working days is null if neither the applicable collective agreement, nor the company agreement relating to working hours allow the employer “to remedy in due time any workload potentially incompatible with a reasonable duration”.  Indeed, the only fact of “providing that a follow-up of the time worked shall be made for any employee on a yearly basis, that, however, as far as possible, the management shall endeavor to sum up the situation every quarter and draw the attention of the employees whose follow-up shall show a too important credit or debit balance in order that they regularize the situation during the following quarter”, is not likely to guarantee that the workload range and volume remain reasonable and ensure a good distribution, time-wise, of the concerned person’s workload  (Cass. Soc. 8 November 2017, No. 15-22.758).

A decree implements the possibility, provided for by the provisions of article L. 6211-2 of the Labor code, to organize all or part of the courses for apprenticeship training (D. No.2017-1548 of 8 November 2017, Official Journal of 10 November).