Newsletter No. 123 – March 2019

Regarding the contractual transfer of employment contracts, the protection benefitting an employee victim of an occupational accident while working for his former employer is not binding upon the new employer, according to the provisions of article L. 1226-6 of the Labor code.  The Cour de cassation adopts an inverse position in the event of a legal transfer of employment contracts.  In this case, the applicants considered that such a position lead to unequal treatment between employees whose employment contract is subject to legal transfer and those whose employment contract is subject to contractual transfer, and they thus wished to ask a QPC in this respect.  The High court refused to refer the question to the Constitutional council: “the principle of equal treatment does not conflict with the fact that the case law interpretation of a legislative provision settles different situations in different ways”; yet, “employees whose employment contracts are transferred pursuant to a collective agreement are not placed in a situation identical to that of employees whose employment contracts are transferred pursuant to the provisions of article L. 1224-1 of the Labor code” (Cass. soc., 20 March 2019, No. 18-40.048).

Article R. 243-59-2, §1 of the Social security code provides that “officers in charge of inspection may offer the inspected person to use the verification methods based on sampling and extrapolation.  At least fifteen days before the beginning of such verification, the agent in charge of the inspection shall indicate to the inspected person the electronic address at which shall be available for consultation the document indicating to said person the different stages of the implementation of these methods, the statistical formulas used for their application and the administrative order mentioned at this paragraph”.  In this case, the Cour de cassation specifies, for the first time, that this 15-day period allows the employer to oppose the verification based on sampling and extrapolation, so that the URSSAF cannot go through this procedure before the expiry of this period (Cass. Civ. 2, 14 March 2019, No. 18-10.409).

An employee, dismissed for physical incapacity of occupational origin one year after his employment contract had been transferred, notably reproached his employer for not having set up elections for staff representatives, although the number of staff had reached the threshold of 11 employees after the divestiture transaction.  According to the trial judges, approved by the Cour de cassation, the certificate of deficiency drawn up on 21 December 2012 by the divested company was valid towards the buyer until 21 December 2016, in the absence of a request to arrange for professional elections submitted by an employee or an occupational organization (Cass. Soc., 6 March 2019, No. 17-28.78).

An employee requested an incentive payment in back pay based on the fact that his employment contract referred to an incentive agreement more favorable to him than the one that had been concluded later on.  The applicant also stated as a reminder that the new incentive agreement was not binding upon him, inasmuch as the contractual remuneration cannot be modified without the employee’s prior consent.  According to the Cour de cassation, “it results from articles L. 3312-2 and L. 3313-2 of the Labor code that a reference in an employee’s employment contract to the calculation methods of the incentive payment as provided for by the then applicable collective agreement does not lead to these calculation methods becoming contractual in favor of the employee” (Cass. soc., 6 March 2019, No. 18-10.615).

Article L. 242-1 of the Social security code provides an exemption from social security contributions of the employer’s contribution to the financing of collective guarantees.  The High court considers that, when an employer has not delivered to each employee a written document stating his unilateral decision to modify the financing allocation between employer and employee of the supplementary scheme, he cannot claim the deduction of his contribution to the financing of this scheme from the basis for contributions (Cass. Civ. 2, 14 March 2019, No. 18-12.380).

Created by the order No. 2017-1387 of 22 September 2017, article L. 1237-19 §1 of the Labor code provides that “a collective agreement may determine the content of a collective mutually agreed termination [RCC] excluding any dismissal to reach the objectives assigned to it in terms of job cuts”.  A union federation and the representative bodies of a company reproached the Dirrecte for having validated the collective agreement setting up a RCC, although the elected representatives had not been consulted on the reorganization project which was at the origin of the agreement.  According to the administrative court of appeal, “assuming that the job cuts contemplated pursuant to the collective agreement lie on economic reasons, such a circumstance does not hinder the implementation of a collective mutually agreed termination” (Administrative Court of Appeal of Versailles, 14 March 2018, No. 18VE04158).

After validation of the main points in the text by the Constitutional council (CC, 21 March 2019, DC No. 2019-778), the law of programing and reform for justice has been published.  Among the measures with an impact on labor disputes, the TI and the TGI shall merge to become the Judicial court, representation by a lawyer shall become mandatory in disputes relating to professional elections and the Caisse des dépôts et consignations (Deposits and Consignments Fund) shall from now on be in charge of wage garnishments.  Most of the provisions of the reform shall not become effective before 2020 (L. org. Nos. 2019-221 and L. No. 2019-222 of 23 March 2019, Official Journal of 24 March).

Open to employees who are the parents of children with an illness, a disability or who are victim of an accident of a particular gravity, this leave can from now on be extended if the gravity of the child’s pathology requires it.  Furthermore, the duration of this leave shall from now on be fully taken into account for the calculation of the concerned employee’s seniority (L. No. 2019-180 of 8 March 2019, Official Journal of 10 March).