Newsletter No. 129 – September 2019

The law for employment stabilization of 14 June 2013 introduced the possibility for the employee to request, before the judicial judge, compensation following the annulment by the administrative judge of the decision to validate or approve the employment safeguard scheme (PSE).  In this case, an employee had been made redundant on economic grounds on 30 April 2014 pursuant to a PSE, validated by the administrative authority on 2 January 2014.  The decision to validate the PSE having been definitively annulled on 22 July 2015, the employee referred his case to the labor court on 16 February 2016.  The French Supreme Court (Cour de cassation) reproaches the trial judges for compensating the plaintiff, when “the 12-month limitation period […] which concerns disputes, over which the judicial judge has jurisdiction, based on an irregularity in the procedure of the employment safeguard scheme […] starts running upon the redundancy being notified”.  The annulment of the PSE thus has no impact on the limitation period of the individual action (Cass. Soc. 11 Sept. 2019, No. 18-18.414).

The Cour de cassation states, in this decision, that fixed-term contracts have to be proposed to the concerned employee by an opinion of unfitness issued by the occupational doctor (Cass. Soc. 4 Sept. 2019, No. 18-18.169).

Such concealment may justify dismissal for gross misconduct, if it appears deliberate and persistent and if the concerned employee had a certain autonomy (Cass. Soc. 11 Sept. 2019, No. 18-19.522).

An employee, whose suicide attempt had been handled as an occupational accident, referred his case to the social security tribunal in order for his employer’s inexcusable misconduct to be acknowledged.  His action having been rejected, the employee referred his case to the labor court requesting the judicial termination of his employment contract for psychological harassment.  According to the Cour de cassation, “the legislation on occupational accidents and occupational illnesses does not prevent the granting of damages to an employee as compensation for the loss caused by the psychological harassment of which he has been the victim prior to the handling of his occupational accident by social security”.  In this case, the trial judges had noted that the psychological harassment acts were distinct from the consequences of the suicide attempt recognized as an occupational accident for which compensation was requested before the social security tribunal, so that his action was admissible (Cass. Soc. 4 Sept. 2019, No. 18-17.329 and 18-17.638).

Employees, who were former miners, had referred their case to the labor court in order to obtain compensation for their prejudice of anxiety and failure to comply with a safety obligation.  The trial judges rejected their requests on the ground that compensation for the prejudice of anxiety was admitted only for employees who had been exposed to asbestos.  For the Cour de cassation, “pursuant to the rules of ordinary law governing the employer’s safety obligation, an employee who proves having been exposed to a noxious or toxic substance causing a high risk of developing a serious pathology and having personally suffered a prejudice of anxiety as a result of this exposition, may take action against his employer for the latter’s failure to comply with his safety obligation” (Cass. Soc. 11 Sept. 2019, No. 17-24.879).

Article L. 1451-1 of the Labor code provides that “when a labor court is being requested to convert an employment contract termination initiated by an employee due to acts with which the latter reproaches his employer, the matter is directly brought before the ruling panel[1], which decides upon the merits of the case within a month of the case being referred to it”.  Usually applied when termination of the employment contract is acknowledged, the Cour de cassation adds that this text does not make any distinction between termination of an employment contract by acknowledgement and termination resulting from a resignation the converting of which is requested.  Consequently, the accelerated procedure is admitted in the case of a resignation resulting from the employer’s fault (Cass. Soc. 18 Sept. 2019, No. 18-15.765).

[1] bureau de jugement (Translation note.)

The Cour de cassation states, for the first time, that “if the right to severance pay comes into existence on the date of the dismissal being notified, the assessment of the amount of compensation is made taking into account seniority upon expiration of the contract”.  Consequently, the trial judges may take into account the interruption of the notice period to determine the amount of the severance pay (Cass. Soc. 11 Sept. 2019, No. 18-12.606).

According to this court, “the capping established by article L. 1235-3 of the Labor code offers guaranties which allow to conclude that based on the pursued objective, the necessary infringement to fundamental rights does not appear, per se, to be disproportionate”.  It however adds that an employee may request an “in concreto” conventionality review allowing to assess whether the Macron schedule does not constitute a disproportionate infringement to their rights, “that is, by imposing disproportionate burdens with regard to the intended result”.  In this case, the employee had not requested such a review, so the Court applied the schedule (CA Reims, 25 Sept. 2019, No. 19/00003).

The law on justice reform of 23 March 2019 notably provides for, as from 1 January 2020, the merging of the first instance courts known as tribunaux de grande instance and tribunaux d’instance, which shall form the court of justice.  Some courts of justice may be specially appointed to have sole jurisdiction over certain matters.  These texts harmonize the provisions of the different codes and clarify, notably, the implementing measures for the merger of the courts of justice’s offices and the labor courts’ offices (Decrees Nos. 2019-912, 2019-913 and 2019-914 of 30 August 2019, Official Journal of 1 Sept., Order No. 2019-964 and decree No. 2019-966 of 18 Sept. 2019, Official Journal of 19 Sept. 2019).