NewsletterNewsletter No.190 – October 2024
MATERNITY LEAVE: Working during maternity leave or sick leave entitles an employee to damages, but not to back pay.
An employee on maternity leave, then on sick leave, claimed that her employer had compelled her to work during these two periods, although her contract was suspended. In this regard, she claimed, in addition to the payment of damages to compensate for the harm suffered from having had to work during her leave, back pay for the hours worked. Addressing the issue of appropriate redress, the French Supreme Court (Cour de Cassation) stated as a reminder that, due to her employer’s failure, the employee “could not claim back pay for the hours worked and could only claim damages in compensation for the harm suffered” (Cass. Soc. 2 October 2024, No. 23-11.582).
SABBATICAL LEAVE: In the absence of a response from the employer, a sabbatical leave, even if requested late, is considered granted.
In this case, an employee had requested sabbatical leave without complying with the applicable statutory three-month notice period. She had taken her sabbatical leave without waiting for the return of her employer, who had not replied within the legal 30-day period, after which the employer’s silence is deemed acceptance. The employee was subsequently dismissed for serious misconduct due to her unjustified absence. While the Cour de Cassation admits that the employee’s failure to comply with the notice period contravenes the provisions in force, it nevertheless considers that “the employer had not responded to the request for sabbatical leave within the thirty-day period. following its submission, from which [the Court of Appeal of Paris] should have concluded that the employer’s agreement was deemed granted and that the employee’s absence was not wrongful.” Consequently, the dismissal lacked a real and serious cause (Cass. Soc. 2 October 2024, No. 23-20.560).
DATA PROTECTION: To prove union-based discrimination, the production of other employees’ pay slips is permitted, provided it complies with GDPR provisions.
Considering himself the victim of union-based discrimination, an employee requested communication of the career history of nine colleagues. The company refused on the basis of personal data protection regarding other employees, considering that this would contravene GDPR provisions. The Cour de Cassation authorizes the production of said documents, stating as a reminder that such measure must be “necessary and proportionate in a democratic society”. The Court emphasized, however, that compliance with the GDPR requires in particular the judge to “ensure the principle of personal data minimization, by ordering, if necessary, automatically, the concealment, in the documents to be communicated by the employer to the requesting employee, of all the comparison employees’ personal data not essential to the exercise of the right to evidence and proportionate to the aim pursued. To do so, it is up to the judge to ensure that the information, which they will specify as having to be left visible, is adequate, relevant and strictly limited to what is essential for the comparison between employees, taking into account the alleged reasons of discrimination” (Cass. Civ.2, 3 October 2024, No. 21-20.979).
REST PERIODS: The inability to contact an employee during their rest days cannot be considered misconduct justifying a disciplinary sanction.
A truck driver was dismissed for serious misconduct for not responding to calls and messages from his employer during his rest days. He contested this decision and won his case, the Cour de Cassation specifying that “the fact that the employee could not be reached outside of working hours on his personal mobile phone is not wrongful and therefore does not justify a disciplinary sanction” (Cass. Soc. 9 October 2024, No. 23-19.063).
ELECTIONS AND FRAUD: In the event of fraud, a professional election is not canceled if said fraud had no impact on the result.
Professional elections for the renewal of the CSE were organized in an establishment. At the end of the second round, 75 votes were cast and 79 ballots were counted. A union elected as a CSE representative filed an appeal with the judicial court for the annulment of the second round of the elections of the electoral college concerned. The Cour de Cassation rejected the appeal, ruling “that these additional ballots had had no impact on the election results, given the votes received by the two competing lists”, thus confirming the decision of the trial judges (Cass. Soc. 9 October 2024, No. 23-14.585).
WORK ACCIDENTS: Leaving a preliminary meeting in tears is not enough to characterize a work accident.
An employee was summoned to a meeting regarding a potential sanction. At the end of the meeting, the employee burst into tears. She was then put on leave from work for a month by her doctor, due to “work-related distress” and an “anxio-depressive state”. The employer declared a work accident with reservations. The CPAM recognized the accident as work-related, but the employer contested this decision before the competent courts, particularly calling into question the materiality of the accident. The court noted a lack of evidence to establish a link between the meeting and actual injuries to the employee, “it being a simple emotional reaction without proven work-related cause”. The incident was thus not deemed a work accident, which is confirmed by the Court of Appeal of Paris, which ruled that the CPAM “failed to prove the sudden occurrence of an injury during the meeting on 20 February 2018, which was the alleged basis for the workplace accident claim” (CA de Paris, 4 October 2024, No. 21/08501).
REDEPLOYMENT OF AN UNFIT EMPLOYEE
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The refusal of a position offer by an unfit employee does not exempt the employer from actively seeking other redeployment options.
An employee was declared unfit by the occupational doctor, with no exemption from redeployment for the employer, who identified at least two positions compatible with the recommendations of the occupational doctor. The employer proposed one of the two positions to the employee, who declined the offer due to a functional and salary downgrade. The employer dismissed her for unfitness with an impossibility of redeployment. The employee contested the validity of her dismissal due to her employer’s failure to fulfill their redeployment obligation. Rightly so, according to the Cour de Cassation, which held that “the refusal by the employee of the proposed redeployment position does not in itself imply compliance with the obligation to seek redeployment by the employer” (Cass. Soc. 16 October 2024, No. 23-13.002).