Newsletter No. 72 – December 2014

An employee was dismissed for misconduct that occurred during their trial period, but after this trial period had ended. The Court of Appeal ruled that the dismissal was not justified, on the grounds that since the employment contract had continued beyond the trial period, the employer must have been satisfied with the employee, in which case actions during the trial period could not constitute grounds for dismissal. However, the Court of Cassation ruled otherwise: “to constitute grounds for disciplinary dismissal, the employer may invoke misconduct on the part of the employee during the trial period, even after this period has expired.” However, a statute of limitations of two months from the time at which the employer becomes aware of the misconduct should be applied (Cass. Soc., 3 Dec. 2014, no. 13-19.815).

The Court of Cassation has just ruled that the provisions of this collective bargaining agreement allowed the reasonable maximum duration of employees’ working time counted in days to be controlled, and also fulfilled the requirements relating to the right to health and rest. Article 6-2 of the agreement dated May 29, 2011 on reduced working hours in the banking industry therefore offers sufficient guarantees. Statements of days and half-days worked are produced on a self-declaration basis. Line management must organize regular monitoring of employees whose working time is defined in this way. In the event of overwork, following an appraisal, all appropriate measures should be taken to ensure a minimum daily rest period of eleven consecutive hours. It is therefore up to employers to ensure that workload remains reasonable, this being a determining criterion for the Court. Individual agreements based on a total number of days worked and concluded on the basis of these provisions are therefore valid (Cass. Soc., 17 Dec. 2014, no. 13-22.890).

In the case in hand, an employee agreed contractual termination with her employer, which had been approved. The payment involved was less than the legal minimum, so the employee brought the case before a Labour Court. She did not dispute the principle of termination but brought the case in order for the shortfall in the payment to which she was entitled to be made up. The Court of Appeal rejected this request, ruling that only improperly formed consent would be grounds for calling into question what had been agreed with the employer. The Supreme Court ruled otherwise, finding that the employee had due grounds to request payment of the shortfall, without having to seek annulment of the termination or demonstrate the existence of improperly formed consent (Cass. Soc., 10 Dec. 2014, no. 13-22.134).

The National Interprofessional Agreement (Accord national interprofessionnel, ANI) of June 24, 2010 on umbrella facilities having been abrogated by the French Constitutional Council in a ruling of April 11, 2014, there will be no legal framework for umbrella facilities as of January 1, 2015. As of that date, freelancers using an umbrella company will no longer benefit from the presumed status of employee. Pending further clarification in the law, and in order not to penalize these individuals with employee status, jobseekers have been released from having to provide proof of the existence of an employment contract, which, in theory, is the only document which entitled them to jobseekers’ allowance. This provision is applicable to all umbrella facility contract terminations as of January 1, 2015. Umbrella companies are still required to forward a specific declaration to the French Jobcentre. (Unédic Circular 2014-31, December 22, 2014).

Defined-purpose fixed-term contracts were introduced on an experimental basis in 2008 and have been made permanent by a law dated December 20, 2014. Where specified in an extended branch agreement or company agreement, firms may conclude a defined-purpose fixed-term contract to recruit managers or engineers to perform a mission for a duration of between 18 and 36 months. The contract is not renewable and expires once the purpose for which it has been concluded has been achieved. A notice period of at least two months must be observed. In addition, the law has also just clarified the mandatory wording that must be included in company or branch collective agreements, and in the contract itself. The “Business life Simplification Act” also allows the government to create legislation in a number of fields by issuing a government order. A number of measures have been announced for the coming months: harmonization of the notion of days in employment law, job security for part-time workers, framing umbrella facilities and broadening the principle of “absence of response constitutes agreement” for administrations (Law 2014-1545 of December 20, 2014, French Official Journal (JO) of December 21).

In application of the law of July 10, 2014, a decree is progressively increasing the amount of trainee allowance, currently set at 12.5% of the maximum hourly rate set by French Social Security. For agreements signed between December 1, 2014 and August 31, 2015, trainee allowance are being raised to 13.75% of this maximum, i.e. €479.65 for those concluded as of December 1, 2014, or €500.50 for those concluded as of January 1, 2015. Agreements signed after September 1, 2015 will benefit from trainee allowance corresponding to 15% of the maximum hourly rate set by French Social Security, i.e. €546.01 per month. In addition, trainees must now be added to the Official Employee Register, in a dedicated section (D. no. 2014-1420 of November 27, 2014, French Official Journal (JO) of November 30).

A National Interprofessional Agreement (accord national interprofessionnel, ANI) dated December 8 last, signed by all representative trade union organizations, has now been subjected to ministerial approval and is due to come into force on January 1, 2015. The key measure in this ANI is a drop in the ‘job security allowance’, which has been lowered from 75% of the reference daily wage from 80% previously. In order to assist with a return to work, beneficiaries of the ‘job security contract’ (contrat de sécurisation professionnelle, CSP) will be entitled to a bonus if they find a new, long-term job within the first ten months of their CSP, defined as an indefinite-term contract or a fixed-term or temporary contract for a duration of at least six months. The bonus will be equal to half the remaining benefits due under the job security allowance scheme.