Newsletter No. 121 – January 2019

Like the French Supreme Court (Cour de cassation), which has recently modified the work relationship of couriers riding bikes (Cass. Soc., 28 November 2018, No. 17-20.079), the Court of appeal of Paris admits, in this case, the existence of an employment contract between the driver of the passenger vehicle and the Uber digital platform.  Mentioning notably that the driver could not build up his own clientele, fix his prices, or determine the conditions for carrying out his activity, and that he received instructions and disciplinary sanctions from the company, the court of appeal concluded “that concordant items of evidence [were] gathered to allow [the driver] to establish the subordination relationship in which he was at the time of his connections to the Uber platform and to thus rebut the simple presumption of non-salaried status that he was under pursuant to the provisions of article L. 8221-6 I of the Labor code” (CA Paris, 10 January 2019,  No. 18/08357).

An employee, who was victim of moral harassment, contested the validity of the mutually agreed termination of her employment contract for this reason.  The trial judges annulled the termination, considering that as it occurred in a context of moral harassment, it was not necessary to prove a lack of consent.  The Cour de cassation quashes the decision of the court of appeal, specifying that “in the absence of a lack of consent, the existence of facts of moral harassment does not by itself impact the validity of the termination” (Cass. soc., 23 January 2019, No. 17-21.550).

Pursuant to the provisions of article L. 121-6 of the Code of traffic regulations, “when an offence […] has been committed with a vehicle of which the holder of the registration certificate is a legal entity or is held by a legal entity, the legal representative of this legal entity must indicate, […] to the authority mentioned in this notice,  the identity and address of the individual who was driving this vehicle, unless he establishes the existence of a theft, of a license plate number theft or any other force majeure event.

The fact of contravening this article is punishable with the fine provided for for fourth class offences”.

In this case, in which a speeding ticket has been paid by the legal representative of the company, the trial judges have considered that he had, in so doing, auto-designated himself as the perpetrator of the offence, and have consequently discharged the prosecuted legal entity.  The Cour de cassation adopts a contrary position: the company has the obligation to indicate the identity of the individual who was driving the vehicle, be it its manager (Cass. crim., 18 January 2019, No. 18-82.380). 

As part of a procedure of dismissal for physical incapacity, the employer must take into consideration, in its preliminary redeployment search, the occupational doctor’s recommendations.  In this case, the trial judges had agreed with an employee who was contesting his dismissal for physical incapacity and the redeployment impossibility, although he had accepted a position that had been offered to him.  The High jurisdiction quashed this decision affirming that “if the employer has to take into consideration, if need be by requesting them, the occupational doctor’s propositions for the redeployment of an employee declared unfit, it is for the employer to draw the consequences of the doctor’s refusal to himself give his opinion on the contemplated redeployment job.” (Cass. soc., 9 January 2019, No. 17-21.516).

Traditionally, a distinction is drawn between the disciplinary suspension of the employment contract, which is a sanction consisting in no longer going to work for a fixed period of time, and the suspension of the employment contract as a precautionary measure, imposed while awaiting a decision.  This distinction is important pursuant to the Non bis in idem principle.  In this case, a court of appeal had annulled the suspension of the employment contract as a precautionary measure by considering it as disciplinary because several days had elapsed between the suspension and the sending of the letter requesting the employee to attend the preliminary meeting.  According to the Cour de cassation, “having observed that the employer had notified his suspension to the employee without having simultaneously initiated the procedure of dismissal which had been initiated only eight days later, the court of appeal was able to conclude that the suspension was of a disciplinary nature despite its being described as a precautionary suspension and that the employer having to complied with the procedure provided for at article L. 1332-2 of the labor code, the sanction had to be annulled” (Cass. soc., 16 January 2019 No. 17-15.012).

The social security financing act for 2019 has provided for measures of reduction of employees’ contributions of a legal nature relating to extra hours and additional hours.  The decree implementing this mechanism as from January 1^st, 2019 has just been published.  It sets the applicable exemption rate and provides details on its conditions of application in case of total or partial exemption of employees’ contributions of social security, of reduced rates, along with its conditions of application to special regimes (D. No. 2019-40 of 24 January 2019, Official Journal of 25 January).

The law authorizing the Government to issue orders to take measures for preparing for the withdrawal of the United Kingdom from the European union was published on January 20^th, 2019.  These orders, which will have to be issued within 12 months from this date, may notably define measures in the area of employment regarding British nationals legally carrying out, at the time of the withdrawal of the United Kingdom from the European union, a salaried professional activity in France.  Generally, they may also provide that “the measures granting British nationals or legal entities established in the United Kingdom a more favorable treatment than that of third-party countries’ nationals or of legal entities established in third-party countries, shall cease to have effect if the United Kingdom does not grant an equivalent treatment” (Law 2019-30 of 19 January 2019, Official Journal of 20 January).