NewsletterNewsletter No.181 – January 2024
UNFITNESS: An employer’s compliance with the obligation to redeploy does not exempt them from resuming salary payments if no dismissal or redeployment occurred within the month following the declaration of unfitness.
An employee who had rejected a redeployment proposal had been summoned to a preliminary meeting. Due to the pandemic, the meeting was postponed for several months without resumption of salary payments. The French Supreme Court (Cour de Cassation) holds that the employer, who has complied with their redeployment obligation, is not exempt from “paying the employee, who refused [a] redeployment proposal and has not been redeployed within the company upon expiry of the one-month period from the date of the medical examination of return to work or has not been dismissed, the salary corresponding to the position they held before the suspension of the employment contract” (Cass. Soc., 10 January 2024, No. 21-20.229).
PROTECTED EMPLOYEES: The decision to authorize the dismissal of a protected employee is binding on the judicial judge.
A staff representative was dismissed for economic reasons, following approval from the labor inspector. Alleging to have suffered union discrimination, he brought various claims before the labor court for payment related to discrimination and for dismissal without real and serious cause. On appeal, he requested the annulment of his dismissal and damages in this regard. Considering that the discrimination claimed by the employee was established, the court of appeal granted his request, ruling that the dismissal was null and void in the context of union discrimination. The Cour de Cassation overturned the appeal decision based on the principle of separation of powers but considered that the judicial judge nevertheless remains “competent to assess the employer’s misconduct during the period prior to the dismissal and in particular the existence of union discrimination” with the aim of compensating for any potential harm suffered (Cass. Soc. 17 January 2024, No. 22-20.778).
AGREEMENT FOR REMUNERATION BASED ON THE NUMBER OF DAYS WORKED: The individual agreement for remuneration based on the number of days worked concluded in the absence of a collective agreement must comply with the supplementary provisions under penalty of nullity.
In the absence of a collective agreement, an individual agreement may be validly concluded. The employer must then comply with the supplementary provisions provided for by Article L. 3121-65 of the Labor Code and ensure their effectiveness. In a decision dated 10 January 2024, the Cour de Cassation ruled that in the event of “failure to fulfill any of these obligations, the employer cannot invoke the derogatory regime provided for by Article L. 3121-65 of the Labor Code. As a result, the individual agreement for remuneration based on the number of days worked, concluded when the collective agreement allowing the use of remuneration based on the number of days worked does not meet the requirements of Article L. 3121-64, II, 1 and 2, of the same code, is void.” The decision states as a reminder that the employer must be able to “ensure that the workload was compatible with compliance with daily and weekly rest periods” (Cass. Soc. 10 January 2024, No. 22-15.782).
FAIRNESS OF EVIDENCE: Inadmissibility of the audio recording which was not essential in the exercise of the right to evidence.
In line with its recent case law resulting from the decisions rendered on 22 December 2023 (Plenary Ass. 22 December 2023, No. 20-20.648), the Cour de Cassation states as a reminder that from now on, “illegality or disloyalty in obtaining or producing a means of proof does not necessarily lead to its exclusion from the proceedings.” The evidence may be used provided that its “production is essential […] and that the infringement is strictly proportionate to the aim pursued”. In this case, “other pieces of evidence produced by the employee […] suggested the existence of psychological harassment, thus showing that the clandestine recording of the members of the CHSCT was not essential to support the employee’s claims” (Cass. Soc. 17 January 2024, No. 22-17.474).
BURDEN OF PROOF: The burden of proof placed on victims of moral and sexual harassment must not be excessive.
The European Court of Human Rights (ECHR) condemns France for violating the freedom of expression provided for at Article 10 of the European Convention on Human Rights. The applicant had been convicted before a criminal court of public defamation following allegations of harassment and sexual assault against her employer. According to the ECHR, “the national courts, by refusing to adapt, to the circumstances of the case, the notion of a sufficient factual basis and the criteria of good faith, placed an excessive burden of proof on the applicant by requiring her to prove the facts she intended to denounce.” France must ensure a procedure that does not have a “dissuasive effect likely to discourage individuals from reporting acts as serious as those constituting, in their eyes, moral or sexual harassment, or sexual assault” (ECHR, 5th sect. 18 January 2024, No. 20725/20, case Allée c. France).
NON-COMPETE CLAUSE: The violation of the non-compete clause by the employee results in the permanent loss of the financial compensation.
An employee breaches the non-compete clause binding him to his former employer. While the latter takes action to stop the competitive activity, the employee, in turn, requests payment of the financial compensation. The Cour de Cassation states as a reminder that “the breach of the non-compete clause no longer allows the employee to claim the benefit of the financial compensation of this clause even after the cessation of its violation”. It does not matter that the employee worked only six months in violation of this clause. The employer is also not required to prove, or even allege, “that the employee subsequently continued a competing activity” to suspend payment of the financial compensation
UNEMPLOYMENT COMPENSATION: Clarifications on the applicable procedure in case of a refusal by an employee of a permanent contract proposal at the end of a temporary contract.
Since 1 January 2024, when an employee refuses a permanent contract (CDI) twice within a twelve-month period, they are no longer eligible for unemployment compensation provided for by Article L. 5422-1 of the Labor Code. Following the second refusal, the employer must inform the France Travail operator, electronically, within one month, providing various details regarding the proposed position, including remuneration, working hours, and classification. Upon receiving all this information, France Travail notifies the employee of the consequences of their refusal on entitlement to unemployment insurance benefits (Decree No. 2023-1307 of 28 December 2023, Official Journal of 29 December 2023).