Newsletter No 79 – July 2015

Article L. 1321-6 of the French Labour Code states that “any document including obligations for the employee or provisions of which they must be aware to carry out their work” must be written in French. Paragraph 3 of this text specifies that “these provisions are not applicable to documents received from abroad or destined for foreigners.” In 2011, applying this legislation, the Supreme Court ruled that if documents specifying the targets necessary for the determination of contractual variable compensation were drafted in English, the employee could legitimately claim they were not binding (Cass. Soc. 29 June 2011, no. 09-67.492). In this instance, the same authority took a different position, in that “the recipient of the documents drafted in English for the purposes of determining the variable component of contractual compensation was an employee who was a US citizen” (Cass. Soc., 24 June 2015, no. 14-13.829).

According to the Supreme Court, “the establishment by both parties of a compensatory payment amounting to less than that specified in article L. 1237-13 of the French Labour Code and […] the joint error in the date set by the parties, prior to the day following approval, do not, in and of themselves, annul the agreement.” However, it specified that in this case, the judges should “rectify the date of termination” and, “in the event of the contractual termination payment being too low, issue a ruling including a financial penalty” (Cass. Soc., 8 July 2015, no. 14-10.139).

The Supreme Court took the view that the provisions of article 13.2 of rider no. 1 dated 13 July 2004 to the HCR agreement “do not guarantee that the duration of work and workload remain reasonable and that work by the individual in question is properly spread over time, and therefore do not ensure the protection of employees’ health and safety.” It should be noted that this rider was renegotiated by employer and employee representatives in December 2014, but that the new agreement needs a specific ministerial order to be applicable (Cass. Soc., 7 July 2015, no. 13-26.444). 

Article L. 1225-4 paragraph 1 of the French Labour Code states that “no employer may terminate an employee’s contract when she has been medically recognised as being pregnant, at any time during periods of suspension of the employment contract to which she is entitled as maternity leave […], or during the four weeks following the end of these periods.” The Supreme Court has specified that “while the four-week protection period subsequent to maternity leave is suspended if paid leave immediately follows maternity leave, the same does not apply in the event of sick leave.” In this case, the sick note did not specify a medical condition relating to maternity (Cass. Soc. 8 July 2015, no. 14-15.979).

Since the Act of 5 March 2014, article L.2324-2 of the French Labour Code specifies that “subject to the provisions applicable in companies with fewer than three hundred employees set forth in article L. 2143-22, each representative trade union body within the company or establishment may appoint a trade union representative to the committee.” In the first ruling following the new wording of this article, the Supreme Court reiterated that “only trade union organisations which, with regard to the committee in question, have received at least 10% of the declared votes at the most recent professional elections, may appoint a trade union representative to the works or establishment council.” In this case, the trade union that lodged the appeal was representative within the company but not within the establishment, with the result that it could not legitimately appoint a representative to the council in the establishment in question (Cass. Soc., 8 July 2015, no. 14-60.726).

An employee disputed their dismissal on the grounds of gross misconduct, arguing that their dismissal letter had been signed by an individual who was unknown to the company. The Supreme Court upheld the trial judges’ ruling that since the signatory was the chief financial officer of the company owning 100% of the shares of the employing company and had signed the letter duly empowered by the legal representative of the latter company, they were not unknown to the company (Cass. Soc., 30 June 2015, no. 13-28.146).

An employee made claims for compensation on the grounds of psychological harassment consisting, in particular, of a refusal on the part of the occupational doctor to draw up a certificate declaring them fit or unfit for work, and the same doctor being unwilling to perform certain medical examinations. The Supreme Court ruled that “even when they are an employee of the company, occupational doctors perform duties assigned to them pursuant to article L. 4623-8 of the French Labour Code, acting as independent professionals, as defined and guaranteed by law; […] consequently, the Court of Appeal was correct in ruling that the behaviour of the occupational doctor in the performance of their duties could not qualify as psychological harassment on the part of the employer.” (Cass. Soc., 30 June 2015, no. 13-28.201).

The Constitutional Council has ruled unconstitutional the provisions of articles L. 23-10-1 paragraphs 4 and 5 and L. 23-10-7 paragraphs 3 and 4 of the French Commercial Code, which stated that failure to inform employees of a SME beforehand of the sale of the business would entail the annulment of the sale (CC ruling no.2014-476, priority constitutionality question (QPC) dated 17 July 2015, French Official Journal dated 19 July).