Newsletter No. 109 – January 2018

After recalling its definition, the French Supreme Court (Cour de cassation) does not fail to indicate once more the restrictive limits of the existence of co-employment.  In the case at hand, the court of appeal had admitted a situation of co-employment by considering that there existed a confusion in the activities, interests and management of the two companies, especially by the fact that the legal representative of one of these two companies was sitting on the general assembly and works council of the other company, and by a full interference of the parent company in the economic management of the subsidiary.  The High jurisdiction quashes the decision, considering that « the fact that the group policy determined by the parent company had an impact on the economic and social activity of the subsidiary, and that the parent company had made, as part of this policy, decisions affecting the future of its subsidiary could not be sufficient to characterize a co-employment situation” (Cass. Soc., 17 January 2018, No. 15-26.065).

Article L. 1226-14 of the Labor code provides that in case of a dismissal for inaptitude, termination of the employment contract notably entitles the employee to a special severance pay equal to the double of the severance pay.  In the case at hand, to sentence the employer to the payment of this sum to the employee, a court of appeal admitted that “the taking note by the employee has the effect of an invalid dismissal due to moral harassment and discrimination, and that the employee victim of an invalid dismissal whose reinstatement is impossible or who does not request it, is entitled to termination compensation.  The High jurisdiction quashed the decision by recalling that such compensation was due only in the case of inaptitude determined by the occupational doctor following an accident at work or a work-related illness (Cass. Soc., 17 January 2018, No. 16-18.559).

The employee of a company called upon the labor court to obtain the requalifying of his CDDs into a unique CDI, along with the benefit of the provisions of the employment safeguard scheme implemented by the company.  After having requalified the employee’s contracts, the court of appeal dismissed this last request, because the concerned employee had been hired after the adoption of the scheme and was not entitled to request the application of the provisions contained therein.  For the High jurisdiction, « in deciding this way, without seeking whether the employee could benefit from the measures of the employment safeguard scheme applicable to the Romanville site and adopted on October 20, 2010, while it had observed that the concerned employee had been assigned to this site since September 6, 2010, the court of appeal did not give its decision any legal basis” (Cass. soc., 10 Jan. 2018, No. 16-21.245).

The organization conditions of the employees’ consultation relating to a draft agreement submitted by the employer in companies of 20 employees or less are defined by decree.  Indeed, the latter updates the regulatory provisions allowing employers of less than 20 employees, and without any staff representatives, to submit to employees’ approval a draft collective agreement.  It provides that the employer, alone, defines the consultation organization conditions, in particular the modes of transmission to the employees of the text of the agreement, of the place, date and time of the consultation.  The personal and confidential nature of the consultation must be guaranteed.  The consultation shall thus be made in the absence of the employer who shall be informed thereof only afterwards.  This consultation shall then be the object of minutes appended to the agreement (D. No. 2017-1767 of 26 December 2017, JO (Official Journal) of 28 December).

The publication of this decree allows to set up the first CSEs.  Since January 1^st, 2018, companies establishing a CSE must comply with these new provisions, even if there are less favorable than the earlier applicable conventional provisions.  The decree fixes in particular the composition of the committee, but also the number of time-off hours available to its members.  On this last point, it is notably provided that the time spent by the CSE delegation members at its meetings is not deducted from the time-off hours, if the global annual duration of these meetings does not exceed 30 hours, for companies of 300 to 1,000 employees, or 60 hours in companies of more than 1,000 employees.  The composition of the CSE varies depending on the company’s workforce (D. No. 2017-1819 of 29 December 2017, JO (Official Journal) of 30 December).

Since a decree issued on December 21^st, 2017 in application of the provisions of the order of September 22, 2017 relating to the predictability and securing of work relations, when the redeployment offers are communicated among the employees by means of a list addressed to the whole personnel, such list must include all the positions available on the national territory in the company and in those of the group it is part of.  The text amends the information that must be contained in the redeployment offers.  The employer shall notably address in a personalized way to each employee, by posting and/or communicating within the company, the list of the available positions containing the title, the description, the classification, the level of remuneration of the position (and no longer the detailed remuneration as under the previous regime), along with the name of the employer and the nature of the employment contract (D. 2017-1725 of 21 December 2017, Official Journal of 22 December).