Newsletter No. 126 – June 2019

Pursuant to the terms of article L. 137-12 of the Labor code, “during the meeting(s), the employer is entitled to being assisted when the employee does so also”.  In this case, the employer was assisted while the employee had signed the termination agreement alone, without having been prior informed of his right to being assisted nor of the fact that his employer would himself be assisted.  According to the Cour de cassation, non-observance of this rule can lead to the nullity of the termination only if it causes any duress or pressure on the employee who attends the meeting alone (Cass. Soc. 5 June 2019, No. 18-10.901).

According to the Cour de cassation, “if the administrative judge cannot, based on the administrative authorization granted to the employer to dismiss a protected employee, without violating the principle of division of powers, assess the real and serious nature of the dismissal, he still, however, has authority to assess any misconduct on part of the employer during the period prior to the dismissal, and notably the existence of any trade union discrimination in the employee’s career development” (Cass. Soc. 29 May 2019, No. 17-23.028).

The Labor Court of Longjumeau, by a judge deciding in case of no majority (juge départiteur), adopts a new reasoning regarding the application of the labor court compensation schedule.  In this case, the judge notes that the employee does not establish having suffered a loss greater than that for which compensation is provided for by the provisions of article L. 1235-3 of the Labor code.  In other words, the judge considers that the application of the compensation schedule is optional, depending on the employee’s situation and the demonstration of his loss (Labor Court of Longjumeau, No majority case (Départage), 14 June 2019, No. 18/00391).

For the Cour de cassation, the court of appeal could not limit compensation for an employee whose psychological harassment had been constituted, because she “could have contributed by her own behavior during the staff representatives’ meetings to the deterioration of the working conditions”.  For the Cour de cassation, it results from the provisions of article L. 4122-1 of the Labor code “that the workers’ obligations regarding safety and moral health at work do not impinge on the principle of the employer’s liability” (Cass. Soc. 13 June 2019, No. 18-11.115).

Adopted for the application of the law No. 2018-771 of 5 September 2018 on the freedom to choose one’s professional future, the decree of 4 June 2019 notably modifies the information to be indicated in the certificate of posting and provides that the appointment of the representative in France shall be made in the certificate of posting.  The administrative order of the same day lists the activities which are exempt from the obligations of posting and of appointment of a representative.  These two texts became effective the day after their publication, except certain provisions which are applicable as from 1 July 2019 (Decree No. 2019-555 and Administrative Order NOR: MTRT1914009A of 4 June 2019, Official Journal of 5 June).

This website, intended for individuals and companies, lists the most common administrative mistakes and provides some advice to avoid them (https://www.oups.gouv.fr).

The decree of 29 May 2019 implements the law No. 78-17 of 6 January 1978, as modified by the order No. 2018-1125 of 12 December 2018, and thus allows the implementation of the new “Data Protection” legal framework (Decree No. 2019-536 of 29 May 2019).

The law No. 2018-771 of 5 September 2018 on the freedom to choose one’s professional future has modified the obligation to employ disabled workers.  The new terms of this obligation are fixed by three decrees that detail the employer’s declaration obligations in this respect or the calculation method of the disabled workers’ employment rate.  These details concern the obligation to employ disabled workers, applicable as from 1 January 2020 (Decrees Nos. 2019-521, 2019-522 and 2019-523 of 27 May 2019).

The Ministry of employment has updated its Q&A on the calculation of the gender equality index.  As a reminder, the next step concerns companies of at least 250 employees which shall publish their index grade as of 1 September 2019 (Q&A published and updated by the Ministry of employment).

The specifications of the responsible contract shall evolve as of 1 January 2020 following the setting up of the “100% health” basket of care measure which shall entitle an employee to be fully reimbursed for prosthetic dental care, vision care costs and audiology costs known as “basic” by Social security and his or her supplementary health insurance.  An instruction from the Social security administration of 29 May 2019, published on 6 June 2019, provides details on the provisions which shall be complied with by healthcare cost contracts in order to benefit from the social and tax advantages attached to responsible contracts (Instruction No. DSS/SD2A/SD3C/SD5B/SD5D/ 2019/16 of 29 May 2019 relating to the supplementary health insurance contract benefitting from tax and social advantages).