Newsletter No. 122 – February 2019

After the Labor courts of Troyes, Grenoble, Amiens and Lyon, the Labor court of Agen has also refused to apply the provisions of article L. 1235-3 of the Labor code, relating to an employee’s compensation in case of dismissal without real and serious cause.  For the first time, this decision was rendered by the decision-making judging formation, presided over by a court of first instance judge.  Considering that this schedule did not conform with article 10 of ILO Convention 158, or with article 24 of the European social charter, it has been judged, in this case, that the compensation provided for by the provisions of article L. 1235-3 was not enough.  This case involved an employee with less than two-years’ seniority in a company of less than 11 employees.  Verbally and brutally dismissed, this employee would have been able to claim, pursuant to the schedule, compensation of only between 0.5- and 2-months’ salary (CPH Agen, 5 February 2019, No. 18/00049).

Pursuant to the provisions of article L. 4121-1, §1 of the Labor code, “the employer takes the necessary measures to ensure the employers’ safety and physical and mental health”.  The French Supreme Court (Cour de cassation) had already considered, in relation to psychological harassment, that, as part of his/her performance safety obligation, the employer had to answer for the acts of persons exerting authority, in fact or in law, over his/her employees.  In this case, the High court adopts a similar position in case of discriminatory acts.  In this matter, the disclosed facts had been committed by volunteers of the association which employed the victim employee, so that the trial judges had refused to hold the employer liable.  The Cour de cassation adopts a contrary solution, stating as a reminder that these facts “had taken place during an evening event organized by the employer, in the association’s restaurant kitchens, in the presence of an employee of the company […] without the latter reacting” (Cass. soc., 30 January 2019, No. 17-28.905).

Resulting from the law No. 2015-994 of 17 August 2015, the provisions of former article L. 2324-22-1 of the Labor code required unions to draw up electoral lists consisting of “a number of women and men corresponding to the share of women and men entered on the electoral list” and “alternatively a candidate of each sex until no more candidates of one of either sex are available”.  Disregarding such an obligation was likely to lead to the cancellation of professional elections, according to the former provisions of article L. 2324-23 of the Labor code.  Considering that these provisions undermined union freedom, the union CFE-CGC France Telecom Orange asked a priority question of constitutionality to the Cour de cassation.  According to the latter, « the provisions in question do not constitute a disproportionate infringement to the principle of union freedom […] and carry out a necessary and balanced conciliation with the fundamental right of gender equality (Cass. soc., QPC, 13 February 2019, No. 18-17.042).

Case law traditionally admits the possibility for an employer to dismiss an employee absent due to an illness of a non-professional origin, if he/she can demonstrate that this absence disrupts the smooth running of the company.  In this case, the trial judges have decided that the absence of the dismissed employee was due to the existence of psychological harassment.  The Cour de cassation agrees with them in that they have judged that the dismissal was null, because “when the employee’s prolonged absence is the consequence of the psychological harassment he/she has been the object of, the employer cannot invoke the disruption that the employee’s prolonged absence has caused to the running of the company” (Cass. soc., 30 January 2019, No. 17-31.473).

An employee contested his dismissal which was based notably on inappropriate and degrading remarks towards his Director, in different letters aimed at ensuring union communication.  Taking into account the working environment, the trial judges, approved by the Cour de cassation, have judged that these remarks, widely spread, constituted an abuse of the employee’s freedom of expression establishing a real and serious cause of dismissal (Cass. soc., 13 February 2019, No. 17-15.928).

Pursuant to the principle stated above, a same fact cannot be the object of several sanctions.  The Cour de cassation specifies, for the first time, that “the employer who, having knowledge of various facts committed by the employee considered by him as wrongful, chooses to sanction only some of them, can later no longer impose a disciplinary measure to sanction the other facts prior to the first sanction” (Cass. soc., 13 February 2019, No. 17-21.793).

When an employment safeguard scheme leads to all the company jobs being axed, the absence of consultation of the CHSCT does not make the procedure null (CE, 13 February 2019, No. 404556).

Following the law No. 2019-30 of 19 January 2019, Government has taken, by three orders, measures relating to financial services, entry, stay, social rights and professional activity, and also in relation to road transport of people and goods, and to safety in the Channel tunnel (Ord. No. 2019-75, 2019-76 and 2019-78, 6 February 2019, Official Journal of 7 February).

The objective is to allow ensuring a better pay equity between posted employees and employees from the host country and making French labor law more widely applicable beyond a certain period of posting.  It shall come into force on 30 July 2020, except for road transport drivers (Ord. No. 2019-116, 20 February 2019, Official Journal of 21 February).