NewsletterNewsletter No. 145 – January 2021

MUTUALLY AGREED TERMINATION: Impact of the existence of a PSE^[1] on the validity of a mutually agreed termination.

In principle, a mutually agreed termination approved by the Direccte cannot be annulled for lack for consent. In this case, an employee requested that the judges determine the nullity of the mutually agreed termination on the grounds of willful misrepresentation, considering that at the time of its being entered into, information, likely to influence his consent, had been intentionally concealed by his employer, who was aware a PSE was being prepared. The French Supreme Court (Cour de cassation) has agreed with the trial judges for having determined the nullity of the termination agreement, after having noted that “the employer had concealed from the employee the existence, on the date the termination agreement was entered into, of an employment safeguard scheme being under preparation, providing for his post to be abolished, and that such concealment had been decisive as to his consent” (Cass. Soc. 6 January 2021, No. 19-18.549).

WORKING TIME: Details relating to the consequences of a flat-rate pay agreement deprived of any effect.

Following a decision depriving an annual flat-rate pay agreement covering days worked, an employer requested the repayment of the working time reduction days off which had been granted to the employee as part of this flat-rate pay agreement. The trial judges dismissed him, considering that the fact that the flat-rate pay agreement covering days worked, which was not annulled, could not have the consequence of depriving the employee of the granting of the working time reduction days off. The Highest court has quashed the decision of the court of appeal: “the flat-rate pay agreement to which the employee was submitted was deprived of effect, so that, for the duration of the suspension period of the individual flat-rate pay agreement covering days worked, the payment of the working time reduction days off granted as part of the performance of the agreement had become undue” (Cass. Soc. 6 January 2021, No. 17-28.234).

STAFF REPRESENTATIVES: Details as to the use of electronic voting.

Article R. 2314-5 para. 2 of the Labor code notably provides that “the possibility to use electronic voting shall granted by a company agreement or by a group agreement. Failing this, an employer may decide on such a use which also applies, as the case may be, to partial elections taking place during a mandate”. The Cour de cassation has specified, for the first time, that “it results from these provisions that only when, after a fair attempt to negotiate, a collective agreement could not be reached, can an employer provide, by a unilateral decision, for the possibility and conditions of electronic voting” and that “since the legislator has expressly provided that, failing a collective agreement, the use of electronic voting could result from the employer’s unilateral decision, such unilateral decision may, in the absence of union representatives within the company or within the group, be taken by the employer without him having to make a prior attempt at negotiation according to the exemption conditions provided for at articles L. 2232-23 to L. 2232-26 of the labor code” (Cass. Soc. 13 January 2021, No. 19-23.533).

COLLECTIVE AGREEMENT: Impact of the adaptation of the effects of the annulment of a clause on litigation which has already started.

The order No. 2017-1385 of 22 September 2017 has added, to article L. 2262-15 of the labor code, the possibility for a court to adapt the effects over time of its decision in case of annulment of a clause of a collective agreement. In this case, a court of appeal had annulled the clause of a collective agreement which fixed the remuneration of certain performers and postponed the effects of this annulment for nine months. The Cour de cassation, using an automatically raised legal ground, has specified that the adaptation of the effects of the decision of annulment could not be used as against the litigation requests made by the parties before the decision, be the parties natural persons or legal persons. It indeed considers that the court of appeal cannot dismiss the claims for damages relating to the infringement of the collective interest of the profession made by the union organizations, which caused the action which led to the annulment of the clause of the collective agreement, on the ground that the effects of the annulment were postponed, if the judicial proceedings had already been initiated on the date of its decision of annulment of the clause (Cass. Soc. 13 January 2021, No. 19-13.977).

EMPLOYMENT CONTRACT TERMINATION: Powers of the judge regarding settlement.

In this case, a court of appeal had determined the nullity of a settlement and sentenced the employer to the payment of various sums as back pays, paid leaves, damages for unfair performance of the employment contract, compensation for termination and damages for dismissal without real and serious cause. The Cour de cassation has stated as a reminder that “the existence of reciprocal concessions, which determines the validity of a settlement, shall be assessed based on the parties’ claims at the time the instrument was signed. If, in order to determine whether these concessions are real, a court can give the facts, as described by the employer in the dismissal letter, their true characterization, it cannot, without infringing the force of res judicata attached to the settlement, rule on the dispute that said settlement aimed at resolving by conducting a review of the elements of fact and evidence”. It results therefrom that the court of appeal could assess the ridiculous nature of the concession, but that it was not up to it to ascertain the rightfulness of the dismissal (Cass. Soc. 6 January 2021, No. 18-26.109).

WORKING TIME: Clarification relating to the proof of extra hours.

In this decision destined for a wide circulation, the Cour de cassation reproaches a court of appeal for having ruled that the detailed account provided by the employee to justify his extra hours was not sufficient as it did not indicate the potential taking of a lunch break. The Highest court has considered that the trial judges had thus placed the burden of proof on the employee only, although it resulted from their observations, “on the one hand, that the employee provided elements specific enough to enable the employer to respond, on the other hand, that the latter provided no element as to the monitoring of the work duration” (Cass. Soc. 27 January 2021, No. 17-31.046).

COVID-19: Exemption measures applicable to occupational medicine.

A first decree has fixed the temporary conditions for an occupational doctor to prescribe leaves from work, along with the Covid-19 detection procedures used by the occupational health services. A second decree has detailed the conditions under which the occupational health services may postpone certain medical examinations which are to occur until 16 April 2021 as part of the individual medical follow-up. Specific rules have also been established for medical examinations of return and pre-return to work, which cannot be postponed, but which may be entrusted to occupational health nurses according to procedures precisely defined (Decree No. 2020-24 of 14 January 2021, Official Journal of 14 January and Decree No. 2020-56 of 22 January 2021, Official Journal of 24 January).

1. Employment safeguard scheme ↑