Newsletter No. 114 – June 2018

In this case, an employee had been punished for having exercised his right of withdrawal.  Contesting the sanction, the employee referred the case to the labor court and provided a certificate established by the occupational doctor from another establishment, to which he had been transferred, putting forward « a poisonous chain of maltreating practices » on part of the employer.  The latter lodged a complaint before the Medical Council (Conseil de l’Ordre), reproaching him for drawing up a medical certificate wronging him in a sufficiently direct and certain way, without having personally verified the denounced breaches.  The French Administrative Supreme Court (Conseil d’Etat) agrees with the employer.  It thus judges that the referred to Medical Council may impose a disciplinary sanction on an occupational doctor who, in order to establish a medical certificate profiting from the link between the employee’s state of health and his work conditions, based himself on facts which he did not personally observed.  It results therefrom that the occupational doctor is bound, like any doctor, by his ethical obligations.  If the latter commits a breach, the employer is thus entitled to trigger his disciplinary liability by referring the case to the Departmental Medical Council (CE, 6 June 2018, DC. 405453).

Regarding the implementation of the staff representative bodies (IRPs), the objective of legal certainty necessarily prevails over the retroactive effect attached in principle to the nullity of collective agreements.  In a decision of 6 June 2018 to be published in its annual report, the French Supreme Court (Cour de cassation) specifies, for the first time, that « the nullity of an agreement relating to the implementation of staff representative bodies has no retroactive effect ».  This nullity thus only applies for the future.  Although given for the implementation of a CHSCT, this solution may be generalized to all of the staff representative bodies, such as the CSE (Cass. Soc., 6 June 2018, No. 17-21.068).

After a decision of refusal of approval of the mutually agreed termination by the DIRECCTE, the parties may decide to immediately sign a new one taking into account the irregularities highlighted by the administrative authority.  In a decision of 13 June 2018, the High jurisdiction specifies the counting of the withdrawal and approval periods, when a new request corrects the first request for approval, which was rejected by the administration.  In this case, the Cour de cassation considers that the employee « [must] benefit from a new withdrawal period ».   If this is not the case, the second convention is null (Cass. Soc., 13 June 2018, No. 16-24.830).

An itinerant employee used to benefit, for his travelling time, from compensation in the form of a remunerated weekly 16-hour package.  He contested this package, arguing that the domicile-client journey was effective work time.  The Cour de cassation concludes by the strict application of the provisions of the Labor code, which expressly exclude characterization as effective work, especially regarding remuneration of these periods.  Indeed, it specifies « that pursuant to the terms of article L. 3221-4 of the labor code in its drafting applicable to the dispute, professional travelling time to get to the place of performance of the employment contract is not effective work time » (Cass. Soc., 30 May 2018, No.  16-20.634).

Article L. 3342-1 of the Labor code provides that « all the employees of a company included in the scope of the incentive and profit-sharing agreements or employee savings plans benefit from their provisions ».  It results therefrom that, if the company entered into a profit-sharing or incentive agreement, the employees must have the possibility to benefit from the sharing out of the company’s results without it being possible to invoke against them their absence, and/or the fact that they do not carry out their activity in France, or that they are not remunerated therein.  The Cour de cassation thus specifies that the clause of a profit-sharing or incentive agreement excluding certain employees posted in a branch abroad is deemed unwritten (Cass. Soc., 6 June 2018, No. 17-14.372).

This decision completes a series of recent decisions allowing employees made redundant on economic grounds to seek the extra-contractual liability of the parent company.  Contrary to the one aiming to prove co-employment, this action does not seek recognition of the existence of a link between the employer and the employee, but the obtaining of compensation from a third party.  Compensation for job loss not being sought, the question of the jurisdiction of the Labor court was raised.  By this decision of 13 June 2018, the Cour de cassation rules that the latter is not competent.  The applicants shall thus turn to the TGI (Cass. Soc., 13 June 2018, Nos. 16-25.873 to 16-25.883).

The law on personal data protection brings the Law on Information Technology and Individual Freedom of 6 January 1978 in line with the « data protection European package » of 27 April 2016, including, notably, the general regulation on personal data protection (RGPD).  The main measures of this text are the setting up of an a posteriori control instead of the current regime of declaration of data processing, the modification of the CNIL’s role and the possibility to bring a group action for compensation of the damage caused by the breaches of a personal data controller (L. No. 2018-493 of 20 June 2018, Official Journal of 21 June).