NewsletterNewsletter No.180 – December 2023
FAIRNESS OF THE PROOF: The Court of Cassation now admits that, in a civil dispute, a party may use, under certain strict conditions, evidence obtained unfairly to assert their rights.
It has been known since 2011 (Plenary Assembly, 7 January 2011, Nos 09-14.316 and 09-14.667) that evidence obtained unfairly cannot be admitted. However, the French Supreme Court (Cour de Cassation) has recently made a significant reversal of case law. From now on, “illegality or unfairness in the obtaining or production of a means of proof does not necessarily lead to its exclusion from the debates.” It is therefore up to the judge to “balance the right to proof and the contradictory rights involved,” with the infringement of other rights being admissible only on the “condition that this production is essential to its exercise and that the infringement is strictly proportionate to the aim pursued.” In a second decision, the Plenary Assembly considered that the question did not arise, since a “private conversation which was not intended to be made public” could not “constitute a breach by the employee of the obligations arising from the employment contract.” When the employee does not breach their contractual obligations, unfair evidence cannot, therefore, be used to justify their dismissal (Plenary Assembly 22 December 2023, No 20-20.648 and Plenary Assembly 22 December 2023, No 21-11.330).
FOREIGN WORKERS: Foreign employees who have not applied for the renewal of their residence permit may be dismissed after it expires.
Article L.8251-1 of the Labor Code prohibits the hiring of foreign employees who do not have a permit allowing them to work. However, the question arises as to when it is appropriate to dismiss an employee whose residence permit has expired. In this case, an employer had dismissed a foreign employee whose residence permit had expired, with no response from him regarding obtaining a new permit. For the Court of Appeal, the maintenance of the right to work for three months provided for by article L.311-4 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA) should apply and the dismissal had no real and serious cause. This argument was rejected by the Cour de Cassation which, by combining the former article R. 311-2, 4° (now R. 431-4 s.) and article L.311-4 of the CESEDA ruled that “a foreigner, holder of a resident card, must, to benefit from the three-month period allowing him, after expiry of his title, to retain his right to exercise a professional activity, request its renewal in the two months preceding this expiry”. An employee, who cannot justify having submitted a renewal request in the two months preceding the expiration of their permit, can therefore be dismissed as soon as their residence permit expires (Cass. Soc. 29 November 2023, No 22-10.004).
ACCIDENTS AT WORK: The presumption of an accident at work can only be contested by a cause entirely unrelated to work.
In this case, an employee had experienced a vasovagal syncope during a meeting with the human resources manager. Occurring at the time and place of work, the syncope is presumed to have a professional origin in accordance with consistent case law (Cass. soc., 29 March 1989, No 86-19.583) and article L.411-1 of the Social Security Code. To contest the professional origin, the court of appeal held that the victim did not prove the existence of a “sudden and abrupt event” which could have caused the accident. The Cour de Cassation ruled that only “the injury [having] a cause totally unrelated to work” allows the professional origin to be contested. Since “the victim’s discomfort had occurred at the time and place of work”, it was presumed “to have […] a professional nature”, regardless of the normal or abnormal nature of a meeting (Cass. Soc. 19 October 2023, No 22-13.275).
UNFITNESS: The obstacle to any on-site redeployment does not exempt the employer from its redeployment obligation.
An employee had been declared unfit for his position by an opinion from the occupational doctor mentioning that his “state of health (posed) an obstacle to any redeployment in a job” and was dismissed for unfitness and impossibility of redeployment. The employee contested his dismissal, arguing that the doctor specified the obstacle to redeployment on the site and that the employer had other establishments. The Cour de Cassation agreed with him and confirmed the decision of the Court of Appeal in that it “correctly deduced that the employer was not exempt, by an opinion of unfitness from the occupational doctor limited to one single site, from seeking redeployment outside the establishment to which the employee was assigned and had thus failed to fulfill its redeployment obligation.” When a doctor issues an opinion of unfitness restricted to a single site, the employer is therefore not exempt from seeking redeployment outside this establishment (Cass. Soc. 13 December 2023, No 22-19.603).
PREGNANT EMPLOYEE: Sending the notice to attend the pre-dismissal meeting during the protection period renders the dismissal null and void.
It appears from Article L.1225-4 of the Labor Code that, during the protection period, not only notification of dismissal, but also all preparatory measures for the latter are prohibited. For the Cour de Cassation, sending the notice to attend the pre-dismissal meeting constitutes “a preparatory measure for dismissal, regardless of whether the meeting takes place at the end of this period”, making any dismissal occurring subsequently null and void (Cass. Soc. 29 November 2023, No 22-15.794).
REMUNERATION: An employer who pays a non-formalized bonus for seven years cannot stop its payment on the pretext of an error.
An employee had benefited from team bonuses and snacks, to which he was not entitled as he did not work in a team. To justify the cessation of their payment, the employer mentioned an error in the payroll software. For the Cour de Cassation, the Court of Appeal highlighted the formalization of bonuses that “the employer had paid continuously to the employee for more than seven years […]” and was “able to rule out the existence of an error in the payment of these bonuses“, thus ordering the employer to resume the payments (Cass. Soc. 13 December 2023, No 21-25.501).
INTERNAL INVESTIGATION: The internal investigation report is not an illicit means of evidence and can be used to justify dismissal for misconduct.
When facts of moral harassment have led the company to carry out an internal investigation, the employer, bound by its safety obligation, can use a “report from the internal investigation […] to justify the misconduct attributed to the dismissed employee”. It is then up to the trial judge to “assess its probative value, taking into account, where appropriate, other pieces of evidence produced by the parties”. The Cour de Cassation also specified that “an investigation carried out within a company following the denunciation of facts of moral harassment is not subject to the provisions of Article L.1222-4 of the labor code and does not constitute illegal evidence as the result of a clandestine monitoring process of the employee’s activity” (Cass. Soc. 6 December 2023, No 22-14.062).