Newsletter No. 76 – April 2015

In a first case, a HR Director, responsible for employees redeployment and administrative follow-through component of an employment safeguard plan implemented in the company, failed to inform his employer of his position as labour court judge at the time of his own dismissal; he then decided to challenge this dismissal, claiming damages on the grounds that he was dismissed in violation of his status as a protected employee. The company considered this to be an act of fraud. The Supreme Court held that the employee’s omission did not constitute use of false pretences and that fraud within the meaning of Article 313-1 of the French Criminal Code had not been established. In a second case, an employee appointed as labour court judge was dismissed by the transferee company subsequent to the transfer of his employment contract. The company argued that it had no knowledge of said mandate. The Supreme Court ruled in favour of the company and held that employees invoking protection as a result of a mandate must establish that they “notified their new employer of the existence of said mandate no later than the time of the pre-dismissal interview” or that the new employer had knowledge of said mandate. (Cass. Crim., 14 Apr. 2015, no. 14-81.188 and Cass. Soc., 15 Apr. 2015, no. 13-25.283).

An employee of a private company was dismissed for disciplinary reasons after refusing to remove her Islamic headscarf when carrying out her duties outside the office, following a customer company expressing its wish to no longer work with a veiled employee. The employee disputed her dismissal and considered herself discriminated against on the basis of her religious beliefs. The claim was dismissed by the labour court and the Court of Appeal. Following this, the Supreme Court decided to stay the proceedings and referred the matter for preliminary ruling to the CJEU. The CJEU is to decide whether requesting that an employee remove her headscarf may be seen as representing a “genuine and determining occupational requirement, owing to the nature of a professional activity or the conditions for carrying out such activity.” (Cass. Soc., 9 Apr. 2015, no. 13-19.855).

An employee staff representative was dismissed after violently headbutting another employee during a meeting of the local works council, resulting in the latter suffering a facial fracture temporarily preventing him from working for thirty days. The employee contested his dismissal on the grounds that the act of violence was related to his mandate and not his employment contract. The judges did not adopt the employee’s line of reasoning and held that this represented a “disregard on the part of the latter of his obligation under his employment contract not to jeopardise the safety of other staff members on the premises of the company.” (CE, 27 March 2015, no. 368855).

An employee considered that the mutually agreed termination of his employment contract was carried out in the absence of his consent. A settlement had been signed during the approval time limit. The Supreme Court pointed out that a settlement entered into a mutually agreed termination is only valid if it is effected subsequent to the approval of the termination and “is intended to resolve a dispute related not to the termination of the employment contract but the performance of the contract in terms of elements not included in the termination agreement.” Accordingly, a settlement may not prohibit an employee from challenging in court the conditions of their mutually agreed termination (Cass. Soc., 25 March 2015, no. 13-23.368).

Portage salarial allows individuals to enter into an employment contract with an umbrella company and carry out assignments for corporate clients. Employees working in connection with umbrella companies must demonstrate that they have the expertise, qualifications and autonomy allowing them to seek out clients on their own and agree with them on the terms for carrying out their service and its price. The umbrella company is not required to provide work to the employee. The corporate client may only use an umbrella company employee to perform occasional tasks outside its normal on-going business or for a specific assignment, which requires expertise it does not possess. The maximum duration of any given service is 36 months. Employment contracts entered into with umbrella companies may be either an indefinite contract or a fixed-term contract not to exceed 18 months (including renewals). Failing branch agreement, the minimum wage is 75% of the monthly Social Security ceiling (Ord. no. 2015-380 of 2 Apr. 2015, JO of 3 Apr.).

Act no. 2014-288 of 5 March 2014 introduced new obligations for Works Councils. For fiscal years subsequent to 1 January 2015, all Works Councils are required to draw up annual financial statements. The arrangements for such accounting varies depending on the number of employees for the Works Council, its annual resources and the balance sheet total. Beginning in fiscal year 2015, a progress report must also be prepared containing information on its activities and its financial management. As of 1 January 2016, the Auditor of the Works Council may trigger an alert procedure in the event it identifies, in the performance of its duties, circumstances that might compromise the continued operations of the Works Council (D. no. 2015-357 and 2015-358 of 27 March 2015, JO of 29 March).

A decree issued pursuant to Act no. 2014-790 of 10 July 2014 combatting unfair social competition specified the obligations of foreign employers seconding employees in France. Foreign employers must draw up statements prior to the secondment, to be attached to the single staff register and appoint a representative of the company in France. Principals calling upon foreign service providers must request a copy of said statement from the Direccte beforehand. It must also request from the Urssaf a certificate attesting that the provider has met its Social Security obligations for any sub-contracting contract of more than €5,000 excl. tax. Principals now have a duty to issue orders and provide information to ensure that the fundamental rights of employees are upheld and that the minimum wage is met in the subcontracting chain (D. no. 2015-364 of 30 March 2015, JO of 31 March).