Newsletter No. 132 – December 2019

Considering she had been the victim of psychological harassment, an employee had complained to her employer, before being dismissed a few months later for incompetence.  She thus referred her case to the labor court, in order for her dismissal, which followed her reporting psychological harassment, to be declared null.  The Court of appeal declared her dismissal null, while dismissing the characterization of psychological harassment and dismissing her request for damages due to the employer’s failure to fulfil his safety obligation: “to dismiss the employee’s claim for damages for failure to fulfil the safety obligation, the decision considers that no repeated act of psychological harassment being established, the employer cannot be reproached for not having launched an investigation and, thus, for having failed to fulfil his safety obligation”.  The French Supreme Court (Cour de cassation) quashes the court of appeal’s decision on this point, by drawing a distinction between the obligation of professional risk prevention and the prohibition of psychological harassment acts (Cass. Soc., 27 November 2019, No. 18-10.551).

Pursuant to the provisions of article L. 2314-30 of the Labor code, “for each electoral college, the lists mentioned at article L. 2314-29 which include several candidates consist of a number of women and men corresponding to the portion of women and men registered on the electoral list”.  In a series of decisions rendered on 11 December 2019, the Cour de cassation clarified the application of this measure.  It notably admitted an exception to the above-mentioned principle when its application leads to one gender being an ultra-minority (namely, that it is entitled to less than 0.5 candidate).  In this case, the Cour de cassation admits that the candidate lists may not include a candidate of that gender (Cass. Soc. 11 December 2019, No. 18-23.513, Nos. 18-26.568, 19-10.855, 19-13.037, No. 19-10.826).

The decree reforming civil procedure was published on 12 December 2019 in the Official journal.  This decree establishes a new procedure before the Court of Justice (resulting from the merger of the courts of first instance, known as the Tribunal d’instance and the Tribunal de grande instance) to which certain employment law cases shall be transferred as from 1 January 2020.  These cases shall be notably those relating to the conformity of electoral operations with the law, the application or interpretation of collective agreements or even social security litigation.  The decree notably provides for the mandatory mentions to be indicated in the petition or summons.  It also provides for the obligation, in certain cases, for the plaintiff to give justification, prior to referring a case to the court, for trying to reach an out-of-court settlement (Decree No. 2019-1333 of 11 December 2019, Official Journal of 12 December).

The guidance law on mobility implements new measures as to the bearing of travel expenses in the company (creation of a specific payment document, introduction of a sustainable mobility package) and includes mobility in the scope of the mandatory negotiation on gender equality and the quality of life at work.  It also imposes a transparency obligation on platforms such as Uber or Deliveroo towards their workers prior to each service being provided (information of the distance covered, guaranteed minimum price) and provides for the possibility of realizing a charter of corporate social responsibility.  About this charter, the legislator had provided for that the undertakings made in this charter could hinder a request for recharacterization.  These last provisions have been censored by the Constitutional council (Law No. 2019-1428 of 24 December 2019, Official Journal of 26 December; Cons. Const., 20 December 2019, No. 2019-794 DC).

In a letter to the Acoss dated 12 December 2019, the Social Security Department adopts a new tolerance regarding the exemption from social security contributions.  It indicates that the following advantage is exempted from social contributions: “the advantage constituted by an access to equipment dedicated to sporting activities such as a fitness room owned by the company, or some space managed by the company or the renting of which is taken care of by the company for sport practice, along with the organization of sport or physical activity classes in one of the above mentioned places, being made available by an employer, even when the company has a CSE, to all of the concerned employees” (Letter of the DSS dated 12 December 2019).

The Professional Future law of 5 September 2018 implemented a bonus-penalty system applicable to employer’s unemployment insurance contributions according to the number of employment contract terminations.  An administrative order of 27 November 2019 sets the business areas and employers that fall under the scope of this new measure.  This concerns notably the accommodation and catering sectors.  This measure is to become effective as of 1 January 2021 (Administrative order of 27 November 2019, Official Journal of 4 December, NOR: MTRD1932518A).

The digital Labor code is an on-line public service which is aimed at employees and employers and which allows to perform searches on employment law. The official release of the website shall occur on 1 January 2020.

The Paris Criminal court sentenced, on 20 December, the former managers of France Télécom for “institutional psychological harassment” of France Télécom’s employees. This is a first, the judges having admitted harassment not resulting from individual behaviors, but from a corporate policy.