Newsletter No. 83 – November 2015

A chief purser for long haul flights who had a panic attack prior to a flight brought a claim for damages before the labour court on the grounds of the employer’s failure to comply with its obligation to provide a safe work environment following the attacks of September 11, 2001. The French Supreme Court ruled that “employers that can prove that they have taken all the measures [laid down by the French Labour Code] are not in violation of the legal obligation to take the necessary measures to ensure the safety and protect the physical and mental health of workers.” In this case, the trial judges and the Supreme Court held that the employer had complied with its obligation to implement preventive measures since, after the return trip from New York on September 11, 2001, it had the entire medical staff meet with the employee, along with the entire crew, in order to ensure a 24-hour presence and direct said employees, if necessary, to psychiatric consultations. Furthermore, the employee was declared fit during four medical examinations and continued to carry out his duties without difficulty until the month of April 2006 (Cass. Soc., 25 November 2015, no. 14-24.444).

In companies with more than 1,000 employees, employers may, during collective procedures for economic layoffs, offer employees the option of taking mobility leave. The employee’s acceptance of this offer constitutes termination of the employment contract by mutual agreement. For the first time, the Supreme Court conceded that this does not preclude the employee from challenging the economic grounds. This solution is similar to the one adopted for employees accepting job security contracts (“contrats de sécurisation professionnelle”) in companies with less than 1,000 employees (Cass. Soc., 12 November 2015, no.14-15.430).

The Supreme Court ruled that “wilful misconduct is characterised by intent to harm the employer, with said intent implying the employee’s willingness to cause detriment to the employer by committing wrongful conduct rather than merely arising from the commission of an act that is detrimental to the company.” In two cases tried on the same day, the Supreme Court rejected this qualification: firstly, with regard to a manager who gave himself exceptional bonuses and advances on his salary without stipulating any terms for their repayment, and, secondly, with regard to an export assistant who embezzled to his personal account €60,000 from payment to the company that employed him of an invoice (Cass. Soc., 22 October 2015, no.14-11.801 and 14-11.291).

In this case, an employee challenged her dismissal for gross misconduct on the grounds, inter alia, that her employer had sanctioned her twice for the same mistake. Indeed, she was of the opinion that the report of an interview drawn up a month earlier by her employer in which the latter listed the grievances which were later used as grounds for the dismissal constituted a sanction insofar as said document had been kept in her file. The Supreme Court held that “given that the document drafted by the employer [was] only a report of an interview in which the employer listed various grievances and inadequacies it attributed to the employee and did not constitute a willingness on the employer’s part to sanction the employee, the Court of Appeal was able to deduce that such an act could not be construed as a disciplinary measure and therefore did not exhaust the employer’s right to carry out disciplinary measures” (Cass. Soc., 12 November 2015, no.14-17.615).

In this case, a trade union and the works council of a call centre company providing technical support demanded that the Syntec collective bargaining agreement be applied instead and in place of the collective bargaining agreement for retail stationary shops. The company’s works council criticised the Court of Appeal for declaring its action inadmissible. The Supreme Court held that “whereas organisations or groups that have a right to bring proceedings and are bound by a convention or collective labour agreement may bring on their behalf against any person bound by the convention or agreement an action to obtain enforcement of the commitments that were made along with any damages, said provision does not apply to works councils, but only to organisations or groups that have the power to enter into conventions or collective labour agreements” (Cass. Soc., 17 November 2015, no.14-13.072).

After declaring invalid day-per-year all-inclusive agreements in June 2011, the Supreme Court is now taking an interest in the use of hours-per-week all-inclusive agreements in the Syntec business whose collective bargaining agreement provides for hours-per-week all-inclusive agreements on the basis of 38.5 hours a week for employees covered by the category no. 2 relating to “achievement of missions.” The Supreme Court held that “only engineers and executives whose compensation is at least equal to the social security ceiling” may be subject to such working time arrangements and reiterated that “when employers are bound by the terms of a collective bargaining agreement, said terms apply to employment contracts in the absence of more favourable provisions and that employees may not waive their rights under collective bargaining agreements” (Cass. Soc., 4 November 2015, no. 14-25.745).

A Health, Safety and Working Conditions Committee along with several unions sought the annulment of an administrative decision approving a job-saving scheme. Article L. 1235-7-1(3) of the Labour Code stipulates that such “appeal is to be lodged within two months by the employer as from the date the validation or approval decision was notified and by trade unions and employees as from the date on which said decision was brought to their knowledge pursuant to Article L. 1233-57-4.” The Council of State concluded from this that Health, Safety and Working Conditions Committees are not entitled to lodge such an appeal (CE, 21 October 2015, no. 38623).

Established by the Social Security Financing Act for 2015, said contribution of 45% to be paid by the employer was ruled unconstitutional, since it created “a proven rupture of the equal discharge of public burdens.” Accordingly, the Constitutional Council ruled its immediate repeal (CC, 20 November 2015, no. 2015-498 QPC).