Newsletter No. 120 – December 2018

The French Supreme Court (Cour de cassation) has for the first time decided on a request to convert the contract binding a delivery man to a digital platform.  The Court of appeal had dismissed the conversion request, notably because the worker remained free to determine his working hours and there was no exclusivity or non-compete relationship.  This position is disapproved by the Cour de cassation which, on the contrary, admits the existence of a subordination relationship.  As far as they noted, “on the one hand, that the application benefitted from a geolocation system allowing real-time tracking by the company of the courier’s position and the counting of the number of kilometers traveled”, so that the role of the platform was not limited to connecting the restaurateur, the client and the courier, and, on the other hand, that the company “had the power to take sanctions against the courier”,  the trial judges could not dismiss the classification as employment contract (Cass. soc., 28 November 2018 n°17-20.079).

The Labor court of Troyes has ruled that the scale capping compensation paid in case of a dismissal without real and serious cause was contrary to article 10 of the ILO Convention No. 158, along with article 24 of the European social charter, and was thus to be dismissed by the judge (CPH of Troyes, 13 December 2018, No. 18/00036). This decision takes the opposing view to that taken by the Labor court of Le Mans which had, on the contrary, admitted the conventionality of the scale (CPH of Le Mans, 26 Sept. 2018, No. 17/00538).

The Cour de cassation provides clarification regarding the interpretation of the new provisions relating to the setting up of a CSE in an establishment, by indicating that a distinct establishment is an “establishment which has, due to the extent of the delegations of authority benefitting its manager, enough autonomy concerning personnel management and service operation”.  The decision also states the judicial judge’s duty (court of first instance), who must “examine all of the contestations, whether they relate to the external legality or to the internal legality of the Direccte’s decision” (Cass. soc., 19 December 2018, No. 18-23.655).

In the absence of a European works council, the personnel representative body of a company controlled by a parent company whose registered office is in another Member state of the European union must be consulted about any project concerning the organization, management and general running of the company, notably about measures likely to impact the volume or structure of the workforce as a result of modifications to the company’s economic or legal organization, including when a takeover bid applies to the parent company’s stock (Cass. soc., 19 December 2018 No. 18-14.520).

The protected employee whose dismissal is null due to the annulment of the administrative authorization must be reintegrated into his position or in an equivalent position.  It results therefrom that if he or she has not fulfilled this obligation, the employer, who does not justify the impossibility of reintegration cannot dismiss the employee because the latter refuses a modification to his or her contract.  A dismissal determined because of such a refusal shall be null, even if the concerned person no longer has the quality of protected employee on the date of the notification (Cass. soc., 5 December 2018 No. 16-19.912).

The law introducing economic and social emergency measures has been published.  It creates a €1,000 purchasing power exceptional bonus, it anticipates the exemption of employers’ contributions on overtime hours and cancels the CSG increase on retirement and disability pensions (Law No. 2018-1213 of 24 December 2018). 

The decree of 24 December 2018, adopted pursuant to the law of 10 August 2018 (Law No. 2018-727 of 10 August 2018 for a State at the service of a trustful society), allows the possibility of social rescript regarding internal rules, corporate officers, the BTP card and the cap on trainees (Decree No. 2018-1227 of 24 December 2018).

The order of 12 December 2018 carries out the rewriting of the law of 6 January 1978, in order to simplify its implementation and provide the necessary corrections to ensure consistency with European Union law.  It defines the missions of the CNIL.  It shall become effective on 1^st June 2019 at the latest (Order No. 2018-1125 of 12 December 2018).