Newsletter No. 95 – November 2016

A company challenged its condemnation to pay a specific non-compete indemnity to one of its former employees. The judges ruling on the merits had considered that the waiver by the employer of the non-compete provision a month and a half after dismissal was late, to the extent that the employee had been released from working out the notice period. The Supreme Court agrees with them. According to the Supreme Court, “in the event that they wish to waive the performance of the non-compete provision, the employer who releases the employee from working out the notice period shall do so at the latest upon the employee’s actual departure from the company, notwithstanding any contrary clauses or provisions” (Supreme Court, Lab. Section, 3 November 2016, n°15-17.666).

A trade union reproached judges ruling on the merits for having considered that documents belonging to the company and communicated to the staff delegates within the framework of a consultation constituted illicit evidence. The Supreme Court indicates, for the first time, that “article L.3171-2 of the labour code, which authorizes staff delegates to consult the documents necessary to the counting of working time, acquired compensatory rests and the actual taking thereof by employees, does not prevent a trade union to submit such documents in court” and that “the right to evidence can justify the submission of elements breaching an employee’s personal life, provided that this submission is necessary to the exercise of such right and that the breach is proportionate to the goal sought” (Supreme Court, Lab. Section, 9 November 2016, n°15-10.203).

For the first time, the Supreme Court states that “the economic cause of a dismissal is assessed at the level of the company or, in the event that it is part of a group, at the level of the industry of the group in which it intervenes; the scope of the group to be taken into consideration for this purpose is all the companies united by the control or the influence of a dominant company in the conditions defined by Article L. 2331-1 of the labour code, without any grounds for reducing the group to companies located on the national territory” (Supreme Court, Lab. Section, 16 November 2016, n°14-30.063, 15-19.927, 15-15.190).

Traditionally, the Supreme Court considered that, in the framework of a dismissal procedure for unfitness, the employer could not take into consideration the position expressed by the employee to orientate the redeployment researches. The Supreme Court reverses its case-law in two rulings reached on the same day: henceforth, the employer “can take into consideration the position of the employee declared unfit” and, in doing so, limit the scope of the redeployment researches depending on the wishes expressed by the employee. In the first ruling, the employer could thus take into consideration the fact that the employee had refused positions offered in France because these were remote from his domicile and had not expressed the will to be redeployed abroad. In the second ruling, the employee had not accepted a position in Strasburg and expressed that she did not want to be redeployed at the level of the group, which the employer was allowed to take into consideration in the framework of their redeployment researches (Supreme Court, Lab. Section, 23 November 2016, n°14-26.398 and 15-18.092).

A works council reproached a court of appeal for considering that the amount of salaries serving as the base for the calculation of the employer’s contribution to social and cultural activities due to the works council was equal to the gross amount of salaries, by deducting the remuneration of the corporate officers and not only the remuneration of the corporate representatives. Yet, the Supreme Court reaches a different position. They consider, indeed, that “only the remuneration of a corporate mandate can be excluded from the amount of salaries serving as the base for calculation of the employer’s contribution and the salaries paid to the officers who hold employment contracts must remain therein.” (Supreme Court, Lab. Section, 3 November 2016, n°15-19.385).

Since the law of August 6, 2015, the judge can take into account a reference table to set the amount of the indemnities that they allocate in the framework of an unjustified dismissal. Article L. 1235-1 of the labour code provides among others that “this reference table sets the amount of the indemnity likely to be allocated depending notably on the length of service, age and situation of the claimant with respect to employment. Should the parties jointly so request, the indemnity is set by the sole application of such reference table”. The decree setting this scale has just been published, while a second decree amends the scale of the lump-sum conciliation indemnity (D. n°2016-1581 and n°2016-1582 of 23 November 2016, OJ of 25 November).

In terms of employment law, this reform brings two new topics. On the one hand, as from January 1^st 2017, employers will have to disclose the contact details of the employee who drives a company car and, on the second hand, class actions are henceforth possible in case of collective discrimination related to work. Associations evolving in the handicap sector or in the sector of the fight against discrimination or trades union will be entitled to exercise these actions before the First Instance Court which has geographical jurisdiction, the principle of which was validated by the Constitutional Council (L.n°2016-1547 of 18 November 2016, OJ of 19 November, CC n°2016-739 D of 17 November 2016).

These decrees are issued to implement the law of 8 August 2016 and proceed for the most part with the redrafting of the part of the labour code resulting from decrees and relating to the working time, in order to have the same in line with the new statutory provisions. Moreover, they clarify the conditions of recourse to specific leave (D. n°2016-1551, 2016-1552, 2016-1553, 2016-1554 and 2016-1555 of 18 November 2016, OJ of 19 November).