NewsletterNewsletter No.191 – November 2024
OBLIGATION OF REDEPLOYMENT: Burden of proof regarding the scope of redeployment within a group
An employee who suffered a work accident was dismissed on grounds of unfitness due to the impossibility of being redeployed within the group. The employee, working for a company that held the capital of other companies, argued that the employer had not sufficiently fulfilled its redeployment obligation, as the redeployment proposal had not been extended to the other companies owned. According to the French Supreme Court (Cour de Cassation), “while the burden of proving the fulfillment of the redeployment obligation lies with the employer,” the employer in this case failed to “demonstrate compliance with its redeployment obligation within a relevant scope.” Consequently, a company that is part of a group must extend its redeployment search to the companies it owns to meet its redeployment obligation (Cass. Soc., 6 November 2024, No. 23-15.368).
DISCRIMINATION AND BURDEN OF PROOF: The employee must provide evidence suggesting discrimination; the employer must then prove the absence of discrimination
In this case, an employee had taken note of the termination of his employment contract, claiming to have been the victim of discrimination on the part of his employer. The employer had not responded after the employee had informed him that he was the victim of racist remarks. The Cour de Cassation reaffirms its consistent case law on the burden of proof in discrimination cases: it is up to the employee to provide evidence suggesting discrimination, and then “it is up to the employer to prove that its decisions are justified by objective elements unrelated to any form of discrimination” (Cass. Soc., 14 November 2024, No. 23-17.917).
TERMINATION OF EMPLOYMENT CONTRACT AND LIMITATION PERIOD: Failure to sign the account settlement does not trigger the limitation period
An employee was dismissed and incarcerated a few weeks later. Four years, after being released, the employee filed a claim with the labor court, arguing that he had not signed the account settlement and therefore had never accepted the related sums. Regarding the limitation period for contesting account settlements, the Cour de Cassation held that “an account settlement not signed by the employee […] has no effect on the limitation period, which does not begin to run.” Furthermore, the Court clarified that while actions concerning the performance or termination of an employment contract are generally subject to a two-year limitation period, this period is suspended during the employee’s incarceration, which constitutes a “case of inability to act due to an impediment resulting from the law, agreement, or force majeure” (Cass. Soc., 14 November 2024, No. 21-22.540).
REMUNERATION: An employee on partial activity receives an hourly remuneration during public holidays
In this case, a union representing employees on partial activity challenged an employer for failing to remunerate public holidays. The Cour de Cassation distinguished between working public holidays and normally non-working public holidays. The former give rise to an hourly remuneration within the framework of partial activity, based on a percentage of the employee’s remuneration, as determined by decree. The latter do not fall within the framework of partial activity and must be fully covered by the employer, as part of the usual salary payment (Cass. Soc., 6 November 2024, No. 22-21.966).
EMPLOYMENT OF OLDER EMPLOYEES: A national cross-industry agreement introduces new provisions for the employment of “experienced employees”
The social partners have reached a national cross-industry agreement (ANI) addressing the employment of “experienced employees“. The main measures outlined in this agreement are the following: strengthening social dialogue on this subject within professional branches (Article 1.1) and companies (Article 1.2), strengthening career development interviews to prepare for the second part of an employee’s career (Article 2.1) and the final phase of their career (Article 2.2), and also creating a contract for valuing experience (Article 3.1.4). The key measures of this agreement include the establishment of end-of-career part-time work (Article 4.2), lowering the minimum age for phased retirement to 60 years (Article 4.3.1), and increasing pension benefits for individuals having participated in combined work-retirement arrangements (Article 4.3.2) (ANI of 14 November 2024 in favor of employment of experienced employees).
EXECUTIVE MANAGER: To classify an employee as an executive manager, it is necessary to assess their actual involvement in the management of the company
According to Article L. 3111-2 of the French Labor Code, three cumulative conditions are required to classify an employee as an executive manager: 1) responsibilities that require significant independence in organizing their work schedule, 2) authority to make decisions largely autonomously, and 3) a salary among the highest. The Cour de Cassation has clarified that executive managers are those who are effectively involved in the management of the company, and the sole employee’s title or status within the company is no longer sufficient (Cass. Soc., 14 November, No. 23-16.188).
RESIGNATION: For a resignation to be valid, it must not be ambiguous
In this case, an employee had stopped going to work after the employer ordered him to no longer report to his position. The employee then sent two letters to the employer, complaining about the lack of work provided. The employee ultimately resigned and later brought the matter before the labor court, arguing that his resignation was the result of a dispute with his employer and should be requalified as a constructive dismissal, which would have the effect of a termination without real and serious cause. The Cour de Cassation reaffirmed its consistent case law: if an employee submits their resignation and “at the time it was given, it was ambiguous, (it should be) treated as a constructive dismissal, which produces the effects of a dismissal without real and serious cause” (Cass. Soc, 14 November 2024, No. 22-23.901).
SETTLEMENT AGREEMENT: The conclusion of a settlement agreement bars the right for the parties to take further legal action
An employee had signed a settlement agreement with his employer following the termination of his employment contract. The agreement included a clause stating that the employee acknowledged having received all due entitlements and irrevocably waived any present or future claims or actions related to the performance or termination of the employment contract. As a result, the Cour de Cassation rightfully declared the employee’s claim regarding the termination of the contract inadmissible (Cass. Soc, 6 November 2024, No. 23-17.699).