NewsletterNewsletter No.182 – February 2024

PAID LEAVE: Compliance with the Constitution of legal provisions regarding entitlement to paid leave during sick leave.

Since the reversal made by the decisions of 13 September 2023 (No. 22-17.638, No. 22-17.340, No. 22-14.043) and the questioning by the French Supreme Court (Cour de cassation) of the compliance of legal provisions with European Union law, the issue of entitlement to paid leave during sick leave remained unresolved. In an effort to ensure the stability of the legal frameworks, the Constitutional Council was petitioned with a QPC (i.e., a priority preliminary question of constitutionality) on the compatibility of articles L. 3141-5 and L. 3141-3 of the Labor Code with constitutional provisions related on the one hand to workers’ health and right to rest, and to the principle of equality before the law on the other hand.

On the first matter, the Constitutional Council ruled that it is not contrary to the right to rest to limit the entitlement of paid leave only to periods of suspension of the employment contract due to occupational illness or work accidents, and to limit the benefit of it to one year. On the second matter, the Constitutional Council stated as a reminder that “the legislator may have provided for different rules of acquisition” depending on whether the illness or accident is of professional origin or not. The Council therefore affirmed the constitutionality of the legal provisions. However, this does not address the issue of the inconsistency between French law and European law, which is still awaiting clarification from the French legislator… (Constitutional Council. 8 February 2024, No. 2023-1079 QPC).

FAIRNESS OF THE PROOF: Admissibility of video surveillance to ensure the exercise of the employer’s right to proof.

The Cour de cassation applies its new case law resulting from the decisions of 22 December 2023 (Plenary Assembly. 22 December 2023, No. 20-20.648) modifying the admissibility of unfair evidence. In this new case, a company was subject to theft. In order to understand its origin, the company decided to install, for a limited period, a video surveillance system without complying with legal requirements. The images made it possible to establish that the thefts were committed by certain employees and so the employer decided to produce them in court. In order to assess the indispensable nature of the evidence, the Cour de cassation affirmed the decision of the Court of Appeal to have “balanced […] the employee’s right to privacy and the employer’s right to the proper functioning of the company, taking into account the legitimate objective […] pursued by the company given the situation”. It appeared that “the production of personal data from the video surveillance system was indispensable to the exercise of the employer’s right to proof and proportionate to the objective pursued“, such that the documents produced were admissible (Cass. Soc. 14 February 2024, No. 22-23.073).

EMPLOYEE IMAGE: The employee’s image cannot be used by the employer for commercial purposes without obtaining prior consent.

In this case, the Cour de cassation ruled that an employer cannot distribute to its clients “a brochure presenting the concierges, including a photograph of the face and head-and-shoulders portrait of each concierge and collective photographs of them” without obtaining the concerned employees’ consent beforehand. In this regard, the Court based itself on Article 9 of the Civil Code, considering that “an individual’s right to their image relates to its capture, its conservation, its reproduction and its use, and that the mere observation of an infringement gives right to compensation” (Cass. Soc. 14 February 2024, No. 22-18.014).

TERMINATION WITHOUT REAL AND SERIOUS CAUSE: The Court of Appeal of Grenoble continues to resist and once again rejects the Macron scale.

Already known for its decisions rejecting the Macron scale (CA Grenoble, 16 March 2023, No. 21/02048), the Court of Appeal of Grenoble persists in wanting to repair the damage caused by a dismissal without real and serious cause beyond the scale. Based on the direct application of Article 10 of ILO Convention No. 158 and Article 24 of the European Social Charter, the judges of the Court of Appeal consider that “the compensation scales provided for by Article L. 1235-3 of the Labor Code do not guarantee a wrongfully dismissed employee […] adequate compensation, they should be set aside purely and simply […] and the elements of damage should be sovereignly assessed […] to determine adequate compensation […] for the damage suffered as a result of dismissal without real and serious cause” (CA Grenoble, 1 February 2024, No. RG 21/02004).

OVERTIME: Proof of overtime can be provided by any means.

Pursuant to Article L. 3171-2 of the Labor Code, and Article 31, paragraph 2, of the Charter of Fundamental Rights of the European Union, employers are required to ensure the monitoring of their employees’ working hours. As such, employers have the obligation to establish the documents necessary for the calculation of working hours. In the context of a dispute relating to overtime back pays, an employer must be able to provide an objective and reliable account, in order to justify the monitoring of the hours worked. In this case, the employer presented a logbook containing handwritten records of the hours worked for each day. The Cour de cassation specifies that in the absence of implementation by the employer of a timekeeping system, the latter retains the “right to submit to adversarial debate any element of law, fact or evidence regarding the existence or number of hours worked” (Cass. Soc. 7 February 2024, No.  22-16.323).

DISCIPLINARY LAW: No prior sanction occurring more than three years before the initiation of disciplinary proceedings can be invoked in support of a new sanction.

It is possible for an employer to rely on previous sanctions taken against an employee to support a dismissal measure, provided that they fall within the three-year limit. In this case, an employer had dismissed an employee by invoking in the dismissal letter a sanction taken three years and one month earlier. The Cour de cassation takes advantage of this decision to state as a reminder the rule laid down in Article L. 1332-5 of the Labor Code, according to which “no prior sanction occurring more than three years before the initiation of disciplinary proceedings can be invoked in support of a new sanction” (Cass. Soc. 14 February 2024, No. 22-22.440).

WORKING HOURS: Failure to comply with the maximum working hours necessarily causes harm to the employee.

Article L. 4121-1 of the Labor Code provides for the implementation by employers of measures ensuring the safety and protecting the health of employees. Collective agreements or specific collective agreement may establish minimum rest periods that the employer must comply with. In the absence of the above, the mere breach of these provisions automatically results in harm to the employee, giving them a “right to compensation”. This is what emerges from a decision issued on 7 February 2024 by the Cour de cassation, according to which “the mere observation that the employee did not benefit from twelve hours of daily rest between two shifts gives rise to the right to compensation” (Cass. Soc. 7 February 2024, No. 21-22.809).