NewsletterNewsletter No. 138 – June 2020

PROCEDURE: Jurisdiction over risk assessment and prevention measures in relation with an employment safeguard scheme (PSE).

On 14 November 2019, the French Supreme Court (Cour de cassation) ruled that the control of psychosocial risks resulting from the implementation of a restructuring project, as part of a PSE, was within the jurisdiction of the ordinary court (Cass. Soc. 14 November 2019, No. 18-13.887), whereas article L. 1235-7 of the Labor code provides that disputes related to the PSE shall be within the jurisdiction of the administrative court. Having been submitted a similar question, the Court of Arbitration (Tribunal des Conflits) ruled that “in relation with a reorganization which leads to the preparation of an employment safeguard scheme, it is up to the administrative authority to make sure that the employer complies with his obligations relating to risk prevention to ensure the workers’ safety and protect their physical and mental health; to this end, it shall control, both the regularity of the information and consultation of the staff representative bodies and the measures the employer is bound to pursuant to article L. 4121-1 of the labor code as part of the implementing provisions of the contemplated operation […]. It is only up to the administrative court to decide a dispute as to the decision taken by the administrative authority”. It however stated as a reminder that “the ordinary court has itself jurisdiction to ensure that the employer complies with his safety obligation when the situation which gave rise to the dispute, either is unrelated to the ongoing project of mass redundancies and staff reorganization and reduction operation, either is related to the implementation of the agreement or document or reorganization operation” (TdC, 8 June 2020, No. C4189).

COVID-19: Scope of the professional organizations’ good practice guides.

Since the beginning of the health crisis related to the Covid-19 and, in particular, with the lockdown measure, the Ministry of Employment has published on its website a certain number of guides and job tip sheets, along with good practice guides prepared by the professional organizations. The French water cooler industry association had requested as part of emergency interim proceedings that the implementation of these job information sheets and guides be suspended because they recommended the prohibition, removal or suspension of water coolers. The French Administrative Supreme Court (Conseil d’Etat) has rejected this request, notably because these documents “do not have the nature of decisions which have an adverse effect and are not likely to be subject to an appeal on the grounds of ultra vires, or to, consequently, a request to see their implementation suspended” (CE, 29 May 2020, No. 440452).

ILLNESS: Impact of a non-authorized sport practice on the payment of the social security daily allowances (IJSSs).

The payment of social security allowances, during a sick leave, is conditional upon the obligation for

the insured party to avoid any activity non expressly authorized beforehand. In this case, a local health insurance fund had suspended the payment of the IJSSs to a person, because he practiced running. The trial judges had considered that running in races, whether for competition or training, did not constitute a non-authorized activity, because the victim, who had been a runner for a long time, had been given prescriptions for leave from work exclusively in relation with some serious depressive state resulting from a difficult professional environment and the prescriptions indicated a right to leave the house without time restrictions and did not include any notion of prohibition or limitation likely to impinge on the concerned person’s rights and prerogatives. The Cour de cassation interprets the facts more strictly: in order to claim IJSSs, the victim must have been “expressly and previously authorized by the prescribing physician to carry out the contentious activity” (Cass. Civ. 2. 28 May 2020, No.19-15.520).

FIXED-TERM EMPLOYMENT CONTRACT: Admissibility of an early termination at the employer’s expense.

Article L. 1243-1, §1 of the Labor code provides that “unless there is an agreement between the parties, the fixed-term employment contract may be terminated before the expiry of the term only in the case of serious misconduct, force majeure or unfitness as noticed by the occupational doctor”. In this case, an employee with a CDD (i.e., a fixed-term contract) had first requested the judicial termination of the employment contract at the employer’s expense, before finally acknowledging the employment contract’s termination. The Cour de cassation, following the trial judges’ argumentation, decided that “without deciding on the basis of ineffective grounds, the court of appeal which, taking into consideration the failures put forward by the employee in support both of their judicial termination request now purposeless and of the early termination of the fixed-term employment contract and analyzing said early termination on the employee’s initiative in the light of the provisions of article L. 1243-1 of the labor code, was able to decide, despite having improperly characterized it as an acknowledgement, that it was justified by the employer’s failures, which it showed constituted a serious misconduct” (Cass. Soc. 3 June 2020, No. 18-13.628).

EMPLOYEE SAVINGS: New case of early release.

From now on, victims of domestic violence can request the early release of their employee savings, within six months of the occurrence of the triggering event (D. No. 2020-683 of 4 June 2020, Official Journal of 6 June).

COVID-19: Publication of a new health emergency law.

This law notably authorizes the Government to issue new orders to cope with the consequences of the spreading covid-19 outbreak. It also provides that the partial activity periods between 1 March and 31 December shall be taken into account for the calculation of pension rights (L. No. 2020-734 of 17 June 2020, Official Journal of 18 June).

PARTIAL UNEMPLOYMENT: Modification of the features of the regime.

A new decree notably provides for an obligation of consultation of the social and economic committee for the filing of the prior request for an authorization of partial activity in companies of at least 50 employees. It also imposes the transmission of the collective agreement or of the CSE’s assent as part of the individualization of the partial activity and defines the conditions for said transmission. It provides details on the conditions in which the reimbursement of the sums paid in connection with the partial activity allowance may be requested from the employer and the conditions in which extra hours may be taken into account for the calculation of the employee’s hourly rate. Finally it provides that the sums received without due cause by companies in connection with employees being placed in a partial activity position, which result from the taking into account, in the remuneration used as a basis for the partial activity allowance and for the allowance paid to the employee, of extra hours known as occasional for the months of March and April 2020 cannot be recovered, except in case of fraud (D. No. 2020-794 of 26 June 2020, Official Journal of 28 June).