Newsletter No 80 – August 2015

An employee on parental leave brought a case to the Labour Court, having terminated her employment contract at her own request due to the employer’s behaviour. Her grounds were the violent attitude of her line manager and her fear of returning to the company. The employer was informed of this situation prior to the employee going on leave. However, it was only after termination at the employee’s request due to the employer’s behaviour that they conducted an inquiry and dismissed the employee responsible. The Supreme Court ruled that the termination at the employee’s request was equivalent to a void dismissal, on the grounds that “although the employer was informed of the facts, as of the date of termination, they had taken no measures with a view to them ceasing; the employee had legitimate grounds to fear continued psychological harassment on her return to the company, where the perpetrator could still act, since the employer had not yet decided to dismiss the latter” (Cass. Soc., 8 July 2015, no. 14-13.324).

An employee and seven of his colleagues halted work in order to obtain an advance on ‘thirteenth month’ pay. When the employer saw that the gates of the company had been obstructed, they sought to find out the reasons for the obstruction and commenced talks directly with the striking employees. The Supreme Court judged that while exercising the right to strike is not subject to any notice (except where otherwise stated in law), the employer must be made aware of the collective professional grievances as soon as work is halted, irrespective of how this information is provided. Failing this, employees initiating strike action may not invoke the protection offered by the right to strike (Cass. Soc., 30 June 2015, no. 14-11.077).

An employee had been recruited pursuant to an employment contract including a trial period of three months renewable. The employer informed the employee of the renewal of the trial period by means of a letter delivered by hand against a receipt. The employee’s trial period was subsequently terminated. The employee brought a case before the Labour Court disputing the legitimacy of this termination. The Supreme Court upheld the petition, on the grounds that “the employee’s signature alone on the hand-delivered letter extending the trial period does not constitute the employee’s consent to its renewal”. Consequently, the employee’s consent (which is required to renew a trial period) must be explicit and cannot be deduced from their having signed the letter of renewal. Failing this, the dismissal will be deemed to be without actual and serious grounds (Cass. Soc., 8 July 2015, no. 14-11.762).

After their position was discontinued, an employee was redeployed to another position, with a two-month adjustment period to “check whether this new position was compatible with their skills and experience”. The employee was dismissed on grounds of poor performance during this probationary period. The Supreme Court ruled the dismissal to be without actual and serious grounds, considering that “while the parties may agree to an adjustment period during a contract due to a change in the employee’s position, this can only be a probationary period, termination of which results in the employee reverting to their original position” (Cass. Soc., 7 July 2015, no. 14-10.115).

The French ‘Act for growth, business and equal economic opportunities’, popularly known as the “Macron” Act (name of the Minister for Economic Affairs), has been promulgated. It sets out a very wide range of measures, with a significant impact on social legislation. Firstly, the Act reforms the Labour Court branch of justice, particularly as regards conciliation and court tribunals. It also permits conventional mediation and collaborative procedures in employment law. Other provisions relate to redundancy, Sunday working, and employee savings schemes (Act no. 2015-990 of 6 August 2015, French Official Journal of 7 August).

We will be publishing a special issue devoted to the Macron Act soon.

The ‘Labour Relations and Employment Act’, popularly known as the “Rebsamen” Act (name of the former Minister of Labour and Employment Relations), was also promulgated over the summer. It has resulted in far-reaching changes to the way in which labour relations are to be conducted. In particular, employee representation in companies with fewer than 11 employees is provided for. A ‘sole employee representative body’ is now possible in companies with headcounts of between 50 and 300 employees (as opposed to 200 previously). A ‘personal work account’ will also be set up. Occupational health is dealt with, too: the employer’s obligation to reassign workers in the event of them being unfit for a position is less stringent, and some psychological disorders will be recognised as occupational diseases (Act no. 2015-994 of 17 August 2015, French Official Journal of 18 August).

We will be publishing a special issue devoted to the Rebsamen Act soon.

A Pôle Emploi Instruction dated 31 July 2015 reviews the terms of benefits for people with the status of employee of an umbrella company, known as ‘portage salarial’ system. For any termination of an umbrella company contract from 3 April 2015 onwards, Pôle Emploi no longer needs to check whether there was an employment contract and more particularly, an employer-employee relationship. This means that the specific employer’s declaration for umbrella company systems is no longer required. The usual Pôle Emploi declaration now features an additional category, “Employed by a ‘portage salarial’ umbrella company” in section 4 (“Employment”). Subject to ordinary law, employees may simultaneously receive income from work covered by an umbrella company and unemployment allowance. Employees may also resume umbrella company work during a ‘contract of professional securisation’. Moreover, a bill was brought before the French Council of Ministers on 19 August to ratify the Order of 2 April 2015 structuring French umbrella company systems (Instr. Pôle Emploi, 31 July 2015, Pole Emploi Official Bulletin (BOPE) no. 2015-67).