Newsletter No. 119 – November 2018

Since the Chatel law of 3 January 2008, retail furniture establishments may depart from the Sunday rest rule by granting weekly rest on a rotational basis.  In this case, an IKEA company employee was claiming before the labor court that such a special permission was contrary to the provisions of the ILO Convention No. 106.   According to the French Supreme Court (Cour de cassation), which relies on a report from the ILO Committee, “the concerned special permissions were justified by the nature of the work carried out, the nature of the services provided by the establishment, the importance of the population to serve and the number of employees, and relied on economic and social considerations addressing a public need”, so that they were not compatible with the ILO convention No. 106 (Cass. Soc. 14 Nov. 2018, No. 17-18.259).

When an employer’s breaches are deemed sufficiently serious by a judge, the latter may consider that the acknowledgement of the employment contract termination entails the effects of a dismissal without real and serious cause.  It would otherwise have the effects of a resignation.  In this case, an employee reproached the Court of Appeal for having judged that non-payment of all the extra hours worked from June 2008 to August 2013 did not amount to a sufficiently serious breach likely to have hampered or made impossible any continuation of the performance of the employment contract between the parties.  The Cour de cassation agrees with the trial judges, notably because the situation referred to by the employee was rather old (Cass. Soc., 14 Nov. 2018, No. 17-18.890).

In two decisions concerning Germany, the CJEU rules that European Union law conflicts with the fact for an employee to automatically lose their annual leave days.  According to the Court, these rights can lapse only if the worker has actually been put in a situation by their employer, notably by adequate information from said employer, to take their days of leave in due course, the burden of proof lying with the employer.  Should it not be the case, the employee may claim financial compensation (CJUE, 6 Nov. 2018, Nos.  C-619/16 and C-684/16).

Pursuant to article L. 2322-4 of the Labor code (now L. 2313-8), a UES may be recognized by agreement or by court decision between several legally distinct companies.  The Cour de cassation indicates, for the first time, that these legally distinct entities may, or not, enjoy corporate status, “if the following is acknowledged between these structures, one the one hand,  a concentration of management powers within the considered perimeter along with a similarity or complementarity of the activities carried out by these different entities, on the other hand, a workers’ community resulting from their social status and from similar work conditions likely to translate in practice into a certain employees’ mutability”.  Consequently, employees of a branch may be integrated in a UES (Cass. Soc., 21 Nov. 2018, No. 16-27.690).

Since the law of 14 June 2013, it is the administrative authority that validates or approves an employment safeguard scheme (PSE), and challenging it is thus to be dealt with by the administrative courts.  For the first time, the Cour de cassation gives an opinion on jurisdiction apportioning between the two judicial orders, indicating that “if the ordinary judge remains competent to assess compliance by an employer with the individual obligation to redeploy, such assessment may not ignore the force of res judicata granted to it by the administrative authority having approved the document [determining] the content of the redeployment scheme integrated into the employment safeguard scheme”.  Hence, the ordinary judge cannot rely on the PSE being insufficient to deem a dismissal as lacking real and serious cause (Cass. Soc, 21 Nov. 2018, Nos. 17-16.766 and 17-16.767).

In this case, a court of appeal had decided that a fixed-term contract which had not been signed by the employer did not amount to an irregularity likely to entail the contractual   relationship to be modified, especially given that the fact that the contracts had been entered into with the person whose signature was missing and that they had been executed according to the provisions contained therein, was not disputed.  The High jurisdiction adopts a contrary position affirming that « by failing to bear the signature of one of the parties, the fixed-term contracts could not be considered as having been established in writing and were, as a consequence, deemed concluded for an unspecified period” (Cass. Soc., 14 Nov. 2018, No. 16-19.038).

In this case, an employee had entered into an employment contract with a Belgian company, and another with a Spanish company, both performed in France.  Dismissed respectively by both these companies, the employee referred her case to the French labor court notably to obtain the recognition of the existence of a situation of co-employment and requested the application of French law.  The Cour de cassation rules that “although the employee had executed her employment contracts in France on a usual basis, the Belgian and Spanish laws had been chosen by the parties, of which it resulted that these only were applicable to the request seeking the recognition of the quality of co-employers”.  The High jurisdiction also admits the application of foreign procedural rules, so long as they do not deprive the employee of their right of access to a court (Cass. Soc., 7 Nov. 2018, No. 16-27.692).

Article 35 of the GDPR provides for the carrying out of an impact assessment relating to data protection when personal data processing is likely to entail a high risk for the safety of persons and data.  The CNIL has just published a list of the types of processing operations for which such an assessment is required, along with the guidelines to carry out the latter (Cnil, deliberations Nos. 2018-326 and 2018-327 of 11 October 2018).