NewsletterNewsletter No. 135 -March 2020

PHYSICAL INCAPACITY: Details relating to receiving one’s salary a month after the occupational doctor has given their opinion.

Article L. 1226-4 §1 of the Labor code provides that “when, on expiry of a one-month period starting on the date of the medical examination of pre-return to work, the employee who is declared incapable of working is not reinstated within the company or if he is not dismissed, the employer shall pay him, on expiry of this period, the salary corresponding to the position he was holding prior to his employment contract being suspended.” In this case, an employee reproached her former employer with not having resumed the payment of her salary on expiry of this one-month period. The trial judges dismissed her claim for salary adjustment on the ground that she had found a full-time job prior to her dismissal. For the French Supreme Court (Cour de cassation), the fact that she had found a job at another company was irrelevant: her employer should have resumed paying her salary between the expiry of the one-month period and the notification of the dismissal (Cass. Soc. 4 March 2020, No. 18-10.719).

WORKING TIME: Details relating to the burden of proof regarding extra hours.

Pursuant to the provisions of Article L. 3171-4 of the Labor code, “in case of a dispute relating to the existence of or to the number of hours actually worked, the employer provides to the judge the elements likely to justify the hours actually worked by the employee.

Based on these elements and those provided by the employee in support of his claim, the judge strengthens his conviction after ordering, as the case may be, all investigation measures he deems useful.

If the counting of the hours actually worked by each employee is ensured by an automatic registration system, the latter has to be reliable and tamper-proof”. In this case, an employee’s claim for the payment of his extra hours had been dismissed because the counting of his hours differed from what he had submitted at trial and from what he had invoked on appeal. The trial judges had thus considered that the elements submitted by the employee were not sufficiently detailed regarding the hours actually worked to support his claim and allow the employer to respond by providing his own elements. The High court quashed this decision, considering that the burden of proof relating to extra hours cannot be placed on the employee alone. As it itself indicates it in an explanatory note, “the Cour de cassation intends to underline the fact that the trial judges have to assess the elements submitted by the employee to support his claim in the light of those provided by the employer, in order for the judges, if the employee has submitted factual elements with some degree of accuracy, to weigh the evidence provided by both parties, which in the end is the aim of the shared burden of proof” (Cass. Soc., 18 March 2020, No. 18-10.919).

DISMISSAL: Pregnancy and the refusal to modify the employment contract.

Article L. 1225-4 of the Labor code forbids the employer to dismiss a pregnant employee, “unless he can prove the employee’s serious misconduct, unrelated to her pregnancy, or to his inability to maintain this contract for a reason unrelated to pregnancy or delivery”. In this case, a pregnant employee had been dismissed after refusing the application to her employment contract of provisions resulting from an agreement relating to internal mobility. The Cour de cassation considers that « such a refusal does not amount, by itself, to the impossibility for the employer to maintain a pregnant employee’s employment contract for reasons unrelated to pregnancy or delivery”, so that the dismissal had to incur nullity (Cass. Soc. 4 March 2020, No. 18-19.189).

EMPLOYMENT CONTRACT: Conversion of the digital platforms’ contracts.

In a most awaited decision involving a passenger vehicle’s driver working on behalf of the company Uber with self-employed status, the Cour de cassation approved the trial judges for having characterized this contractual relationship as an employment contract after noting:

1°) that this driver joined a transport service created and entirely organized by this company, which service exists only thanks to this platform, through the use of which he can establish no clientele, he cannot freely fix his rates or the conditions for providing his transport service,

2°) that a particular itinerary is being imposed on the driver which he cannot freely choose and for which price adjustments are being applied should he not follow said itinerary,

3°) that the final destination of the ride is sometimes unknown to the driver, who cannot really freely choose, as an independent driver would, a suitable ride,

4°) that the company has the possibility to temporarily disconnect the driver from its application after his refusing three rides and that the driver can lose access to his account if a rate of order-cancellation is exceeded or in case of “problematic behaviors” being reported”, and from all these elements deduced “the carrying out of work under the authority of an employer who has the power to give orders and directives, to control the performance thereof and to sanction any violations and that, consequently, the driver’s status of independent worker was fictitious” (Cass. Soc., 4 March 2020, No. 19-13.316).

CORONAVIRUS: Entry into force of the “Law to cope with the covid-19 epidemic”.

This law implements “health emergency” measures, alongside the ordinary law state of emergency provided for by the law of 3 April 1955. These measures, introduced into the public health code, are not sustainable. Their provisions shall be valid for a year, until 1 April 2021. As regards labor law, article 11 of this text notably enables the Government, by way of orders, to limit employment contract terminations, to authorize employers to impose leaves on employees, to modify the conditions and timeframes for the payment of incentive bonuses. (L. No. 2020-290 of 23 March 2020, Official Journal of 24 March). Galion will detail the measures taken by orders separately.

UNEMPLOYMENT: Postponement of the entry into force of the reform.

In the context of the covid-19 virus spread and given its consequences on the labor market, the date on which the calculation method of the reference daily wage which serves as a basis for calculating the unemployment insurance benefit was to become effective, is postponed to 1 September 2020. The decree also completes the list of periods likely to be neutralized with respect to determining the reference daily wage which serves as a basis for the calculation of the benefit and the duration of benefits (Decree No. 2020-361 of 27 March 2020, Official Journal of 29 March).