NewsletterNewsletter No.184 – April 2024
PAID LEAVE AND SICK LEAVE: The new legal provisions concerning the acquisition of paid leave during sick leave came into force on 24 April 2024.
Article 37 of law No. 2024-364 of 22 April 2024 amends the Labor Code, in order to comply with European Union law. The new text provides that employees on leave from leave due to non-work-related illness or accident will accumulate 2 days of paid leave per month up to a limit of 24 working days per year. As for employees absent due to work-related illness or accident, they continue to acquire 2.5 working days of paid leave per month (i.e., 30 working days per year). A new obligation is placed on the employer: at the end of a period of a leave from work, the employer must inform the employee of the number of paid leave days available to them, as well as the date by which these days may be taken. Indeed, the law adds that, if an employee is unable, due to illness or accident, to take all or part of the leave he has acquired during the leave period, they have the option to obtain a postponement of the leave for a maximum period of 15 months. Finally, the text specifies that a two-year period on expiry of which rights are lost, applies from its publication to current employees who would like to request the benefit of days of leave for the previous period.
DISMISSAL OF A PROTECTED EMPLOYEE: The request for authorization to dismiss a protected employee, filed by a person not authorized to act on behalf of the employer, may be rectified before the labor inspectorate reaches a decision.
The French Administrative Supreme Court (Conseil d’Etat) asserts, for the first time, that it is possible to subsequently rectify a request for dismissal authorization if it was not submitted by an authorized person. However, it is specified that in order to be valid, this rectification must be made during the investigation, by providing a document proving that the initial signatory had the power to dismiss. Also, the Conseil d’Etat states as a reminder its case law (in particular CE 9 April 2004, No. 233630) according to which the labor inspectorate receiving a request for authorization to dismiss a staff representative must verify the quality of the author of the request (CE 12 April 2024, No. 459650).
DISMISSAL DUE TO ECONOMIC REASONS : The elements for assessing the dismissal order criteria may vary depending on the professional categories.
In this case, a unilateral PSE (i.e., an employment safeguard scheme) had notably set as an assessment criterion the professional evaluations for the professional category composed only of executives, the criterion of geographical and/or functional mobility of employees having been retained for the other categories. The company’s CSE (i.e., social and economic committee) took legal action, arguing that this differentiation in setting the criteria amounted to discrimination and that the criterion of geographic mobility was not relevant. The Conseil d’Etat dismisses these arguments, considering that the elements for assessing the order criteria may be different depending on the professional categories. The Conseil d’Etat also specifies that “it does not result from any rule or principle that the criterion of order relating to professional qualities must be assessed by taking into account at least two distinct indicators” (CE 12 April, No. 459650).
CSE AND SOCIAL AND CULTURAL ACTIVITIES (ASCs): A seniority criterion in the allocation of the ASCs of the CSE is illegal.
In this case, a social and economic committee had, as part of its internal regulations, made access to social and cultural activities conditional on a minimum seniority of six months. Considering that this amounted to excluding certain employees from the benefit of ASCs, a trade union organization sought the annulment of said clause. The French Supreme Court (Cour de cassation) granted this request by declaring, for the first time, that while it is up to the CSE “to define its actions in terms of social and cultural activities, the opening of the rights for all employees and trainees within the company to benefit from social and cultural activities cannot be subordinated to a condition of seniority” (Cass. Soc., 3 April 2024, No. 22-16.812).
VERBAL DISMISSAL: The dismissal announced verbally to the employee before the sending of the notification is deprived of real and serious cause.
In this case, an employee was dismissed for serious misconduct. The announcement of the measure was made by telephone, before the notification, which was sent the same day. The employee brought the matter before the labor court to contest his dismissal. Rightly so, according to the Cour de cassation, which states as a reminder its consistent case law, according to which the dismissal announced verbally before sending the letter is necessarily devoid of real and serious cause (Cass. Soc., 3 April 2024, No. 23-10.931).
SUNDAY WORK AND OLYMPIC GAMES: Exemption from Sunday rest is subject to the voluntary agreement of the employee, under penalty of a minor offense.
For the record, Article 25 of Law No. 2023-380 of 19 May 2023 authorizes, subject to prefectural authorization, retail businesses close to Olympic sites to deviate from the Sunday closing obligation, with the agreement of the employees concerned. In this regard, the employee may revoke their decision to work on Sunday by informing their employer in writing with a notice period of ten clear days. Decree No. 2024-338 of 12 April 2024 adds that failure by the employer to comply with the condition that the employee must be acting on a voluntary basis constitutes a fifth-class minor offense.
UNILATERAL COMMITMENT: Contrary to a company practice, a unilateral commitment that has been renewed does not require termination or notice.
Unilateral commitments are created by the sole will of the employer. They are distinct from company practices, which arise from general, fixed and constant practices, without a fixed duration. In order to no longer apply a company practice, it is necessary to issue a termination notice and to comply with a notice period. This obligation arises from the indefinite nature of its duration and its successive execution. In this case, the unilateral commitment of the employer had an expressly determined term, preventing the classification as company practice, even in the event of one or more renewals. Thus, once it has reached its term, the commitment ceases to apply, without the employer having to issue a termination notice complying with a reasonable notice period (Cass. Soc., 3 April 2024, No. 22-16.937).
PAYSLIPS AND PRIVACY: Publishing a union delegate’s pay slip in a union leaflet violates their privacy.
In this case, two unions accused an employee representing another union of holding multiple offices and engaging in corruption, and had distributed, among the employees, leaflets partially reproducing his pay slips. The latter therefore brought the matter before the judicial judge for invasion of privacy. In accordance with its case law, the Cour de cassation considers that the distribution of the pay slip of a union delegate in a leaflet issued by another union constitutes an invasion of their privacy, the mere observation of which entitles to compensation (Cass. Soc., 20 March 2024, No. 22-19.153).