Newsletter No. 124 – April 2019

Since 2015, the French Supreme Court (Cour de cassation) has made several decisions in which it has judged that the differences in treatment between professional categories or those between employees carrying out distinct duties within the same professional category, made by agreements or collective agreements, were presumed to be justified.  This evolution could lead to thinking that any difference in treatment, whatever it may be, would be justified if it resulted from a collective agreement.  The Cour de cassation put an end to this reasoning in a decision of 3 April 2019.  It considered that the difference in treatment (made by collective agreement) based on the date of arrival of the employee on a site could not be presumed to be justified (Cass. Soc., 3 April 2019, No. 17-11.970).

Article 1226 of the Civil code provides that “a creditor may, at their own risk, terminate the contract by notification.  Other than in an emergency situation, they have to give a prior formal notice to the defaulting debtor to carry out their undertaking within a reasonable timeframe”.  This provision, resulting from the order No. 2016-131 of 10 February 2016, raised questions as to its effects on an employee taking note of the termination of his or her employment contract.  The Cour de cassation has just indicated, in an opinion of 3 April 2019, that the above-mentioned provisions are not applicable to the taking note of the termination (Cass. soc., Opinion of 3 April 2019, No. 15003).

Since 2010, the Cour de cassation has saved compensation for the prejudice of anxiety only for employees having worked at a site part of the list of establishments entitling to an asbestos early retirement.  By a judgement delivered on 5 April 2019, the Cour de cassation marked a case law turnaround and now gives the possibility to any employee who can prove having been exposed to asbestos, with a high risk of developing a serious pathology, to claim a prejudice of anxiety, although he or she would not be eligible for the asbestos early retirement (Cass. Ass. Plén., 5 April 2019, No. 18-17.442).

In a decision benefitting from the largest visibility, the Cour de cassation indicated that an employer could take unilateral decisions in relation to the fixing of the number and perimeter of the distinct establishments for the election of the CSE only after having entered into “sincere and loyal negotiations” (Cass. soc. 17 April 2019, No. 18-22.948 PBRI).

The conditions for the application of article L. 1235-4 §3 of the Labor code, resulting from the law No. 2018-771 of 5 September 2018, which provides for the possibility for Pôle Emploi to issue a writ of execution[1] in order to recover from the employer the unemployment benefits paid to an employee whose dismissal is judged to be without real and serious cause, were fixed by a decree of 27 March 2019.  It is notably provided that Pôle Emploi, after having given a formal notice to the employer to repay the benefits, may issue a writ of execution if this formal notice has remained without effect during a one-month period from its notification.  These new provisions apply to judgements made by the labor courts after 1 April 2019 (Decree No. 2019-252 of 27 March 2019, Official Journal of 30 March).

[1] Known as “contrainte” in French.

This draft directive provides for a paternity leave of at least 10 business days[1] (in France, the paternity leave is currently of 11 days), a minimal right to caregiver leave of five days per year (in France, there currently exists a natural caregiver leave), and a paid parental leave (to be defined by the Member states).  Today, in France, the parental leave is not paid, but may, under certain conditions, give rise to the payment of benefits from the Health insurance fund.  This draft directive should soon be approved by the European Council, then the Member States shall have three years to transpose it into national law.

[1] Including Saturdays.

Pursuant to the terms of the directive, employers have to establish channels and internal procedures allowing to notify an alert and follow it, and designate the appropriate authorities to receive and deal with external alerts.  On certain points, the directive goes beyond the Sapin 2 law, notably concerning the scope of the protected persons which is larger than under French law.  This draft directive should soon be approved by the European Council, then the Member States shall have two years to transpose it into national law.

The draft law notably provides for, regarding social matters, a harmonization of the calculation of staff thresholds, a simplification of retirement savings and employee savings and a relaxation of evening work for food retail sale businesses.  Conformity of the draft law to the Constitution is currently being examined by the Constitutional Council.

The CNIL published on its website, on 11 April, two draft reference guidelines relating to the setting up of personal data processing intended for the implementation of an alert mechanism along with data processing as part of staff management.  The CNIL submits these two drafts to public consultation, anyone being able to make proposals on the CNIL’s website.  The reference guidelines shall then be adopted during a plenary session.