Newsletter No. 73 – January 2015

The Supreme Court has recently clarified the application of the principle of equal treatment in collective bargaining agreements. In this case, the Syntec national collective bargaining agreement provided for various benefits for engineers and managers, such as, for example, a longer notice period or more favourable arrangements for calculating severance pay. The Supreme Court held that “the differences in treatment between professional categories effected through collective bargaining agreements negotiated and signed by the representative trade unions […] are deemed to be justified and it is thus up to the party challenging them to demonstrate that they are totally unconnected to any considerations of a professional nature.” Henceforth, category-based benefits are deemed to be justified. The burden of proving the contrary is upon the employee claiming a benefit reserved for another professional category (Cass. Soc., 27 Jan. 2015, No. 13-22.179).

An employee had been the subject of a disciplinary suspension owing to her aggressive behaviour toward her supervisor. The internal rules provided for this possibility, but did not specify the maximum length of the sanction. The Supreme Court held that a disciplinary suspension is unlawful unless the internal rules enabling an employer to implement such a sanction has also provided for the maximum period for said sanction, which must be stipulated. Failing this, the suspension shall be revoked, even if the maximum period were provided for in the applicable collective bargaining agreement (Cass. Soc., 7 Jan. 2015, No. 13-15.630).

An employee was fired and received pay in lieu of notice. The employment contract provided for the option of waiving the non-compete clause within one month following notice of termination of the employment contract. The company released the employee from this non-compete clause only during the unworked notice period. The employee considered that the waiver was late and claimed payment of the financial compensation. The Court of Appeal ruled in favour of the employer on the grounds that it had complied with the contractual terms. The Supreme Court did not adopt this line of reasoning, ruling that “for employers not requiring employees to carry out their notice period, should they wish to waive the non-compete clause, they must do so by the time of the actual departure of the interested party from the company, notwithstanding any stipulations or provisions to the contrary.” It is therefore the actual departure from the company that constitutes the starting point for the employee’s obligation to comply with the clause. It is also from this date that the financial compensation is payable. (Cass. Soc., 21 Jan. 2015, No. 13-24.471).

The Committee on Health, Safety, and Working Conditions of a company along with two trade unions challenged the assessment methodology set up by the employer. During the first phase of this system, employees were asked to assess their own performance by filling out a form prepared by the company. This document was then used as the basis for the manager and the manager’s supervisor to assess the employee. This was followed by an interview during which each party could make comments and modifications. The Versailles Court of Appeal considered that this self-assessment system was lawful on the grounds that “no provision governing the matter prohibits the employees being involved in their assessment, through their own assessment of the results they have achieved and the conditions under which they achieved these results.” This methodology has however not yet been validated by the Supreme Court. (CA Versailles, 19 Dec. 2014, No. 13/03.952).

Even if work resumption examinations are generally initiated by the employer, employees may also request work resumption examinations from the occupational doctor. In such a case, the employee must notify the employer beforehand. Failing this, if the employer is made aware of the medical examination only at the time it is carried out, any certificate of incapacity which may be delivered by the occupational doctor shall not be enforceable against the employer. The examinations performed may not be categorised as work resumption examinations and the employer shall be exempted from performing the procedure related to a finding of incapacity by the occupational doctor. (Cass. Soc., 7 Jan. 2015, No. 13-20.126 and 13-21.281).

The Unemployment Insurance Agreement entered into on 14 May 2014 provides that all employers established in France are obliged to register all their expatriate employees working outside the territory of the EU Member States, the European Economic Area or Switzerland with the French unemployment insurance scheme, including nationals of a third State. A Unédic circular reiterates this requirement for employers. Before, this registration was optional only for expatriate nationals of a third State. Henceforth, a Chinese employee working as an expatriate in India for a French company must be registered with the French unemployment insurance scheme. This circular also clarifies the rules on compensation applicable to employees working outside of France or employed by international organisations, embassies and consulates (Circ. Unédic No. 2014-34 of 23 December 2014).

Pursuant to the Act of 20 January 2014 to secure the future and justice of the pension system, a decree dated 30 December 2014 clarified the principle of contributions not giving rise to new pension rights. Thus, as of 1 January 2015, individuals receiving a pension shall not garner any new pension rights in the event they resume employment, including in the event this new employment entitles the individual to subscribe to a new pension plan. This rule applies to any pensioner for all plans, for basic schemes as well as for complementary plans. It does not apply however to disability pensions, incapacity pensions, and special public function plans, SNCF, RATP, Opéra de Paris and Comédie française. (D. No. 2014-1713 of 30 December 2014, JO of 31 December).