Newsletter No. 74 – February 2015

An employee hired by a supermarket chain working on the basis of a days‑per‑year all inclusive agreement fixed at 216 days applied to a Labour court to have his employment contract terminated by court order on the grounds of psychological harassment and the unlawfulness of his days‑per‑year all inclusive agreement. The Supreme Court held that the collective bargaining agreement for retailers and wholesalers of mainly food products “merely provided for, in terms of the monitoring of the workload and working hours of the employee concerned, a yearly meeting with the supervisor.” The company agreement concluded pursuant to this collective bargaining agreement merely provided for the work to be organised over 5 days, to allow the affected employees to be able to organise their weekly rest. In the view of the Supreme Court, it followed from these provisions that the days‑per‑year all inclusive agreement was invalid, as these two collective agreements were not “capable of ensuring that working hours and workload remain within reasonable limits and allow for the proper allocation over time of the interested party’s work, thereby protecting the employee’s safety and health.” The employee was therefore entitled to overtime pay (Cass. Soc., 4 Feb. 2015, No. 13-20891).

A company accused a competitor of poaching several of its employees. To prove the existence of unfair competition, the employer wished to make use of the contents of text messages sent between said employees and third parties on their business mobile phone. The competitor considered this to be an unfair method of proof and therefore inadmissible since neither the issuer of the message nor the recipient was aware that the text message was recorded. The Supreme Court did not follow this line of reasoning, deciding that “the written messages (“short message service” or SMS) that were sent or received by the employee on the telephone provided by the employer for the purposes of their work are assumed to be of a professional nature, meaning that the employer is entitled to consult the messages even when the individual in question is not present, except when the messages are identified as personal.” The Supreme Court accordingly applies the same presumption of a professional nature to text messages as for files stored on a business computer (Cass. Com., 10 Feb. 2015, No. 13-14779).

In order to avoid the financial compensation or rest periods in lieu of compensation owed to employees needing to dress and undress on site, an employer amended the clause of the company’s internal rules relating to the wearing of work clothes, henceforth allowing employees to come and go from work already in their work clothes. Only the Works Council had been consulted on this change, which no longer allowed employees to claim any compensation. In the view of the Supreme Court, the committee on hygiene, safety and working conditions should have been consulted pursuant to Article L.1321-4 of the French Labour Code, which provides that “internal rules may only be introduced after having been submitted for the opinion of the Works Council, or, failing this, staff representatives, as well as being submitted for the opinion of the committee on hygiene, safety and working conditions for matters within its remit.” The disputed clause was therefore not binding on employees, which could continue to avail themselves of the former provisions and thus of the compensation provided for therein (Cass. Soc., 11 Feb. 2015, No. 13-16547).

An employee disputed the amount of his contractual severance pay, considering that a bonus should have been included in the basis for assessing his severance pay. The employer argued that this bonus, unlike in previous years, was not related to the company’s performance, but awarded on an extraordinary and discretionary basis, so that it could not be included in the assessment base. However, this bonus had been paid to the employee each year since his hiring and only the amount for each year was discretionary and variable. The Supreme Court held that this bonus, which was paid consistently and regularly, “constituted part of the wages to be included in the base for assessing the statutory severance pay” (Cass. Soc., 28 January 2015, No. 13-23421).

An employee was dismissed for serious misconduct after falsely accusing her supervisor of psychological harassment. Whereas Article L.1152-2 of the French Labour Code prohibits punishing an employee for testifying to or reporting acts of psychological harassment, this does not prevent the employer from punishing the employee’s bad faith. In this case, after examination, the acts were found not to have occurred and the employee was unable to provide any clarification. The Supreme Court recognised that the accusations “were not made lightly or casually but amounted to serious, repeated, and even slanderous accusations which were objectively likely to harm the accused party as well as the employer, accused of allowing the employee to be subjected to said alleged harassment in breach of its obligation to ensure the safety and protect the health of the employee.” (Cass. Soc., 28 Jan. 2015, No. 13-22378).

The Job Protection Act of 14 June 2013 set a minimum 24 hours per week for part-time employment contracts. An Order has recently specified that employment contracts not exceeding seven days as well as fixed-term contracts and assignment contracts for replacement work are not to be subject to the minimum statutory 24-hour workweek requirement. The replacement worker may work on the basis of the contractual workweek of the replaced employee. The Order also clarifies the situation of employees who have requested in writing to work less than 24 hours and given their reasons for making such a request, and who wish to work more hours at a later date. From now on, this is no longer an automatic right and such employees shall only be given priority in hiring. In addition, the employer shall only be required to provide a list of the available jobs within the employee’s occupational category (Ord. No. 2015-82 of 29 Jan. 2015, JO of 30 Jan.).