NewsletterNewsletter No. 134 – February 2020

PSYCHOLOGICAL HARASSMENT: Reminder of the steps necessary to prove psychological harassment.

Article L. 1154-1 of the Labor Code provides that when an employee considers himself or herself to be a victim of psychological harassment, he or she shall submit “factual elements leading to assume the existence of harassment”. As for the employer, he or she shall “prove that these actions do not constitute said harassment and that his or her decision is justified by objective elements which are unrelated to any harassment”. In two decisions of 12 February 2020, the Highest French court states as a reminder the steps necessary to prove psychological harassment. On the one hand, in a first decision, it reproached the trial judges for having made a separate assessment of each element brought forward by the employee and stated as a reminder that it was up to the latter to analyze whether, taken as a whole, these materially established elements allowed to assume the existence of psychological harassment. On the other hand, in a second decision, it reproached the trial judges with discarding psychological harassment by justifying only some of the alleged wrongful actions and stated as a reminder that all the facts brought forward by the employee shall be justified by objective elements unrelated to any harassment (Cass. Soc., 12 February 2020, No. 18-15.045 and No. 18-24.119).

RELIGIOUS FREEDOM: Wearing a beard and expressing religious convictions.

Members of the public service have a duty of neutrality which prevents them from expressing their religious beliefs within the public service. In this case, a member of the public hospital service was dismissed following his refusal to comply with the hospital’s manager’s request to trim his beard “in order to remove its ostentatious nature”. The administrative Court of appeal validated this measure based on the fact that “although his beard could not, despite its size, be seen as being itself a religious symbol, he had refused to have it trimmed and had not denied that his physical appearance could be seen as a religious symbol”. The French Administrative Supreme Court (Conseil d’Etat) did not share this view and considered that these elements were not enough to establish the expression of religious convictions (CE, 12 February 2020, No. 418299).

DISMISSAL AND OCCUPATIONAL HEALTH: Discriminatory nature of a dismissal decided after reported burn-out.

An employee, dismissed for incompetence a few days after having reported to his employer having been on sick leave due to burn-out, contested this measure and requested damages claiming the dismissal was null. The trial judges dismissed his claims, considering that the elements supplied in the proceedings did not allow to assume that the employee had been dismissed due to his health condition. The Highest French court quashed and annulled the Court of appeal’s decision, the latter having noticed “that the employer had followed the dismissal procedure eight days after having received an email from the employee informing him about his health problems related to his working conditions and decided also that a dismissal for incompetence was without real and serious cause”, “of which it resulted that the employee brought forward factual elements which allowed to assume the existence of discrimination due to his health condition” (Cass. Soc., 5 February 2020, No. 18-22.399).

EMPLOYMENT CONTRACT: Limitation period applying to the action to convert a CDD (i.e., a fixed-term contract) into a CDI (i.e., permanent contract).

The order No. 2017-1387 of 22 September 2017 dissociated the limitation period of the action relating to performance of the employment contract (set at two years) and that of the action relating to termination of the contract (set at 12 months). The question could then be raised as to which limitation period was applicable regarding an action to convert a CDD. In a decision of 29 January 2020, the French Supreme Court (Cour de cassation) decided that the action to convert a CDD into a CDI was subject to the limitation period applying to actions relating to performance of the employment contract, namely two years. It also added that “the limitation period of an action to convert a fixed-term contract into a permanent contract based on the ground of the use of the fixed-term contract stated in the contract has, as starting point, the end of the contract’s term or, in case of a succession of fixed-term contracts, the end of the last contract’s term”

(Cass. Soc., 29 January 2020, No. 18-15.359).

This detail is important because the starting point of the limitation period shall vary according to the grounds of the action to convert. The Cour de cassation has thus already considered that the limitation period of an action to convert a CDD based on a missing indication in the contract was to start as from the entering into of said contract (Cass. Soc., 3 May 2018, No. 16-26.437).

EMPLOYMENT CONTRACT: Clarifications on the application of the flat-rate tax on customary fixed-term contracts.

Article 145 of the 2020 finance law created a 10-Euro flat-rate for entering into a customary fixed-term contract. Pursuant to a circular of 12 February 2020, the Unedic clarified the scope of this tax along with its measures for implementation. It notably states that the tax concerns the customary fixed-term contracts entered into as from 1 January 2020 and that, payable in relation to each customary fixed-term contract entered into with the same employer, it does not apply to the renewal of the contract (Circ. No. 2020-04 of 12 February 2020).

WORK-RELATED INTERVIEW: Clarifications from the Ministry of Employment.

Article L. 6315-1 of the Labor code, as amended by the law of 5 March 2014, provides that an employee shall benefit, once every two years, from a work-related interview with his or her employer dedicated to his or her career development opportunities, notably in terms of qualifications and employment. It also adds that, once every six years, this work-related interview makes a recap description of the employee’s then current career path. The order of 21 August 2019 added a transitional period, until 31 December 2020, to allow employers to prove they fulfil their obligations in this respect. In a Q&A, the Ministry of Employment clarified the work-related interview and explained notably that the above-mentioned order has no impact on the date on which employers can prove they fulfil their obligations towards employees working in the company on the day of entry into force of the law of 5 March 2014. The recap description interviews of employees who have been working at a company prior to 7 March 2014 still have to be arranged for before 7 March 2020 (Q&A of the Ministry of Employment, February 2020).

PROFESSIONAL EQUALITY: Publication of the gender equality index.

Companies with 50 to 250 employees have to publish, for the first time, and on 1 March 2020 at the latest, the professional gender equality index on their website and provide their indicators to the labor inspectorate’s services. As for companies with more than 250 employees, they shall publish their second index.