Newsletter No. 77 – May 2015

Pursuant to the provisions of article L. 4613-1 of the French Labour Code, the Committee on Health, Safety and Working Conditions (CHSCT) members are appointed by a “college made up of the elected members of the Works Council and the staff delegates.” Following the cancellation by a Court of the election of the members of the Works Council and the staff delegates, trade unions also requested the cancellation of the appointment of the members of the CHSCT. According to the Supreme Court, “cancellation of the election of the members of the Works Council and staff delegates only entails the elected employees losing their membership of these representative bodies as of the date on which it is pronounced.” Consequently, in this case, “cancellation of the election of the staff delegates and the members of the Works Council on April 1, 2014 had no impact on the proper nature of the appointment of the members of the Committee on Health, Safety and Working Conditions organised previously, on March 31” (Cass. Soc., 15 April 2015, no. 14-19.139).

Article L. 1331-1 of the French Labour Code states the following: “any measure other than verbal observations taken by the employer following the actions of an employee considered by the employer to be at fault shall constitute a sanction, irrespective of whether this measure may have an immediate effect on the employee being present in the company and/or on their position, career or compensation.” In this case, an employee was dismissed for gross misconduct after having received a large number of requests for explanations; the trial judges took the view that these were simply instructional measures. However, for the Supreme Court, these written requests for explanations constituted a sanction, in that this procedure was implemented following actions considered as being at fault; the employee was to answer the questions put individually and immediately; and the report recording the requests and answers was kept in the employee’s individual file (Cass. Soc., 19 May 2015, no. 13-26.916).

A firm of chartered accountants brought proceedings against a former employee, on the grounds of unfair competition during the notice period during which he had been released from work, after being retired. The former employer argued that the fact he had not worked during the notice period did not bring forward the date on which the employment contract ended, such that the obligation of loyalty arising from the employment contract endured throughout this period. The higher court did not follow this line of argument, and upheld the Court of Appeal ruling whereby the employee could, during the work released notice period, be employed by a competitor, given that the employee in question was no longer subject to the non-competition clause included in his employment contract and that he was released from work during his notice period. It added the following: “moreover, the employer did not have grounds, following the failure of its action on the grounds of unfair competition, to argue, on a contractual basis this time, that there had been some form of disloyalty on the part of the employee; indeed, it could not legitimately invoke the ‘non-poaching’ obligation stated in the retirement letter: the latter revealed itself to be fundamentally invalid as a non-competition clause in the absence of any related financial consideration” (Cass. Soc., 6 May 2015, no. 14-11.001).

A contractor (“auto-entrepreneur”) requested for his commercial relationship with a company to be redefined as an employment contract. The trial judges rejected his claim, on the grounds of his refusal to attend an exhibition and the invoices for services that he had sent to the company. The Supreme Court overturned this ruling: a number of factors made it possible to characterise the existence of a “subordination tie” between the parties: work according to a precise daily schedule drawn up by the company; an obligation to attend individual interviews and sales meetings; annual turnover targets being set. The person in question was also required “in stern, critical terms, to conclude sales, according to a determined procedure, failing which these would be rejected” (Cass. Soc., 6 May 2015, no. 13-27.535).

An employee who was dismissed on grounds of incapacity following an occupational disease disputed these grounds of dismissal. The trial judges rejected her claim, observing that the employer had complied with its reclassification obligation, in particular by carrying out ergonomic alterations to her workstation and working hours as part of a part-time arrangement for medical reasons. The Supreme Court overturned this ruling, stating that “only reclassification procedures compatible with the findings of the occupational doctor on the occasion of the work resumption examination may be taken into consideration in assessing whether the employer has fulfilled its reclassification obligation.” Consequently, “by referring to procedures and arrangements prior to the incapacity opinion, and without having sought to establish, as had been requested, whether the employer had, prior to the occupational doctor’s second opinion, implemented measures such as a transfer, transformation of the workstation or specific working hours arrangements, the Court of Appeal did not provide a legal foundation for its ruling.”(Cass. Soc. 6 May 2015, no. 13-24.496).

A company challenged the refusal of French data protection agency (CNIL) to issue an authorisation to implement a process to identify child pornography violations by its employees. The system consisted in “comparing website use and downloads of any origin implemented from the computer terminals of each [of the] employees with a digital signature file corresponding to child pornography content supplied by the police authorities, with the aim, if a match was found, of generating an alert resulting in the database administrators analysing the facts and, where applicable, approaching the competent bodies with regard to any suspected violation.” The French Council of State upheld CNIL’s decision, because employers are not entitled to implement automated processing of which “the sole purpose is to identify and record the existence of criminal offences” (CE, 11 May 2015, no. 375669).