NewsletterNewsletter No. 133 – January

EMPLOYMENT CONTRACT: Reminder regarding the use of a CDD (i.e. a fixed-term contract) of replacement.

Article L. 1242-2 of the Labor code provides notably for the possibility to enter into a fixed-term contract for the replacement of an employee while awaiting the actual starting date of the employee hired under a permanent contract and meant to replace him. In a case concerning an employee hired by a city pursuant to 191 fixed-term contracts from February 2003 to 6 May 2011, the French Supreme Court (Cour de cassation) stated as a reminder, on the one hand, “that a fixed-term employment contract entered into to ensure the replacement of an employee which does not indicate the name and qualification of the replaced employee shall be considered as a permanent contract” and, on the other hand, “that in no case the employer shall be authorized to use a fixed-term contract in order to fill a position related to the normal and permanent activity of the company while awaiting the hiring of the position holder” (Cass. Soc., 15 January 2020, No. 18-16.399).

EMPLOYMENT CONTRACT TERMINATION: Clarification relating to the dating of facts justifying the acknowledging of a termination.

For several years, the Cour de cassation has been deciding that former breaches cannot justify the acknowledging of an employment contract termination, so far as they did not prevent the continuation of the latter (Cass. Soc., 26 March 2014, No. 12-23.634). The High court very recently relaxed this position, in a case where the employee had been subject to, since 1992, intimidation and humiliation, threats, work overload and a deterioration of his work conditions, along with trade union discrimination in his career development and his remuneration. According to the trial judges, approved by the Cour de cassation, “the persistence of these breaches made the continuation of the employment contract impossible”, so that acknowledging the termination of the latter was justified (Cass. Soc., 15 January 2020, No. 18-23.417).

DISMISSAL: Disrespectful remarks andfreedom of expression.

An employee, dismissed for serious misconduct for having made remarks exceeding his right of expression and criticism towards the managers, contested this measure. The trial judges converted the serious misconduct into a real and serious cause for the dismissal, noting that this employee had an aggressive and critical behavior towards other employees and immediate superiors, causing a conflict-ridden climate and a deleterious atmosphere. The High court quashed and annulled the decision of the court of appeal, reproaching it for not having established “in what way the emails drafted by the employee contained offensive, defamatory or excessive language” and stating as a reminder that “except in the case of an abuse, the employee shall enjoy his freedom of expression within and outside the company” (Cass. Soc., 15 January 2020, No. 18-14.177).

STAFF REPRESENTATION: Consequences of the failure to organize professional elections.

According to well established case law, stated again here by the Cour de cassation, “an employer who has not, although legally bound to, taken the steps necessary for establishing employee representative bodies, without a certificate of deficiency being drawn up, commits a breach which causes a prejudice to the employees, who are thus deprived of a possibility to see their interests represented and defended”. After having worked for eighteen years for his employer, an employee was reproaching the latter, during his notice period prior to retiring, with never having organized staff representative elections. Applying a case law in force since 2016 (Cass. Soc. 13 April 2016, No. 14-28.293) according to which the existence of a prejudice and the assessment of the latter are within the trial judges’ discretionary power, the court of appeal dismissed the employee’s claim because he did not put forward nor did he provide proof of any prejudice. The High court quashed and annulled this decision and thus confirmed that the absence of a certificate of deficiency necessarily causes the employee a prejudice (Cass. Soc., 8 January 2020, No. 18-20.591).

STAFF THRESHOLDS: Implementation of the reform carried out by the PACTE law.

The law of 22 May 2019 harmonized the rules for calculating companies’ employee staff and the rules for exceeding staff thresholds for the application of certain regulations. Two implementation decrees were published on 1 January 2020, so that these provisions are already in force. Among these measures, there is notably the exclusion of corporate officers from staff calculation and the raising of the threshold from 25 to 50 employees for the obligation of providing a canteen facility. Regarding the dematerialized transmission of attestations to Pôle Emploi and the appointment of an adviser on hyperbaric hazard prevention, they become mandatory when the staff reach 11 employees (instead of 10 previously) (D. No. 2019-1586 and 2019-1591 of 31 December 2019, Official Journalof 1January 2020).

OCCUPATIONAL HEALTH: Conditions applying to the electronic notification of the CARSAT’s decisions^[1].

Article L. 242-5 of the Social security code notably provides that the decisions relating to the rate of the contribution owed with respect to occupational accidents and illnesses, and relating to risk classification into the different categories, shall be notified to the employer electronically. An administrative order specifies that such transmission shall be made through the “AT/MP Account” teleservice, available on the www.net-entreprises.fr portal. Not subscribing to this teleservice shall entail the application of a penalty whose amount shall vary according to company staff size (Administrative order of 30 December 2019, Official Journal of 31 December).

EMPLOYMENT CONTRACT: Introduction of a tax on customary fixed-term contracts.

Article 145 of the finance law for 2020 provides that “any employer shall be subject to a fixed tax whose amount shall be set at 10 Euros for each fixed-term contract known as customary which he enters into pursuant to point 3 of article L. 1242-2 of the labor code. The tax shall be payable on the date of conclusion of the contract”. Certain exemptions are however provided for: filmmaking professions, intermediary associations in the sector of integration activities through economic activity, and casual dock workers. The law also excludesfrom these measures companies operating in business sectors covered by an extended collective agreement providing for a minimum period applicable to these contracts and defining the conditions under which an employee is offered to enter into a permanent employment contract after a cumulative duration of effective work. These provisions apply to fixed term employment contracts entered into as from 1 January (L. No. 2019-1479 of 28 December 2019, Official Journalof 29 December).

1. The CARSAT is the pension insurance and occupational health fund. ↑