Summary
LEGISLATION
REFORM OF THE LITIGATION PROCEDURE REGARDING THE ACKNOWLEDGMENT OF TERMINATION OF EMPLOYMENT CONTRACTS
Law No. 2014-743 of July 1, 2014
COLLECTIVE AGREEMENTS
Extension to all companies covered by the SYNTEC collective agreement of the amendment concluded on April 1, 2014, concerning working hours in the SYNTEC sector
EQUALITY BETWEEN WOMEN AND MEN WITHIN THE COMPANY:
WORK-LIFE BALANCE.
The contribution of Law No. 2014-873, which came into force on August 6, 2014.
UNEMPLOYMENT COMPENSATION REFORM:
Extension of the waiting period for receiving unemployment benefits /
The rechargeable rights system / Combining unemployment and employment / Seniors
CASE LAW
…of July 9, 2014,
“a mobility clause applicable throughout the French territory is sufficiently precise”
…of September 30, 2014
“possibility of concluding a mutually agreed termination during the suspension of the employment contract of an employee in the event of a work-related accident”
…of July 2, 2014
“opening the employee’s mail and not responding to their requests for supplies gives rise to a presumption of psychological harassment”
…of September 17, 2014
“the late submission of documents intended for Pôle Emploi necessarily causes harm to the employee”
…of June 11, 2014
“it is the employer’s responsibility, not the employee’s, to monitor the implementation of daily work packages”
…of July 9, 2014
“the statute of limitations for wage claims does not extend to actions for damages for separate harm”
LEGISLATION
Reform of the litigation procedure regarding the formal acknowledgment of termination of the employment contract
Law No. 2014-743 of 1 July 2014 relating to the procedure applicable before the labor court in the context of an employee's termination of the employment contract.
This law created article L.1451-1 of the Labor Code:
"When the labor court is seized of a request to classify the termination of the employment contract initiated by the employee due to actions that the employee attributes to their employer, the case is brought directly before the judgment panel, which rules on the merits within one month of being seized of the matter."
The hearing before the conciliation board is cancelled.
Pursuant to these provisions, employees who are forced to terminate their employment contract due to serious breaches they attribute to their employer will have their situation dealt with before the judgment bureau of the Industrial Tribunal in the weeks following their formal notice of termination.
Indeed, it is important to remember that an employee who acknowledges the termination of their contract must promptly contact the Labor Court to have the termination recognized as attributable to their employer.
Until this reform, employees acknowledging the termination were forced to wait many months after filing their claim for a hearing, a period during which they were unable to register with unemployment insurance agencies because the employer had not provided the termination documents.
Now, with cases being heard on their merits more quickly, employees should see their situations resolved more rapidly.
However, in practice, the legislator's objective of speed is likely to clash with the backlog in the labor courts, which will undoubtedly have difficulty scheduling these cases for hearings on short notice. Moreover, the requirement that both parties must have finalized their agreements and exchanged documents between receiving the summons and the hearing date will likely result in the case being postponed to a later hearing… several months later.
The contribution of Law No. 2014-873 of August 4, 2014, for equality between women and men, which entered into force on August 6, 2014
The law for real equality between women and men of August 4, 2014, aims to better ensure this equality within companies and to reconcile private and professional life.
The main contributions of the law are:
- Enhanced protection against harassment
An employer who becomes aware of acts of sexual harassment in the company must take the necessary measures to put an end to them and to sanction them (art. 40, 41 and 42).
- The simplification of negotiations regarding professional and salary equality and the applicable penalty in the event of non-compliance by the employer
At the company level, the issue of gender equality was the subject of two annual negotiations: one on professional equality (Article L. 2242-5 of the French Labor Code) and the other on equal pay and the elimination of pay gaps.
The law of August 4, 2014, provides for a single annual negotiation on "the objectives of professional and salary equality between women and men within the company, as well as on the measures to achieve them."
Two new negotiation topics are introduced: career progression and gender diversity in employment.
Failure to comply with the annual negotiation requirement may result in employers being barred from bidding on public contracts.
This penalty will apply to public contracts concluded from December 1, 2014.
It should be noted that this penalty will also apply to employers convicted of discrimination (Art. 16).
- new leave authorizations for employees
Employees entering into a civil partnership (PACS) from August 6, 2014 onwards will legally have a right to 4 days of paid leave as for a marriage (art.21)
. The partner of a pregnant woman will benefit from three paid leave authorizations during the pregnancy (art.11).
- changes to family benefits
As of October 1, 2014, the supplement for free choice of activity, paid to employees on parental leave, is now called the "shared child-rearing benefit."
The duration of payment of this benefit is extended if the leave is shared between both parents (Art. 8).
- protection for young fathers against dismissal for four weeks
Article 9 stipulates that for four weeks following the birth of his child, a new father can only be dismissed if he commits serious misconduct or if maintaining his employment contract is impossible.
The protection afforded to pregnant women extends to new fathers.
The dismissal of a young father for a reason other than those stipulated could lead to reinstatement or compensation under labor law. However
, under criminal law, Article R 1227-5 concerning "pregnancy" and "maternity" is strictly applied, meaning that the penalties provided for cannot currently be applied in cases of non-compliance with the rules in the presence of a male employee.
Collective agreements
Order of 26 June 2014 extending an amendment to an agreement concluded within the framework of the national collective agreement for technical design offices, consulting engineering firms and consulting companies (no. 1486) (Official Journal of 4 July 2014):
By order of 26 June 2014, the amendment concluded on 1 April 2014, modifying Article 4 of Chapter 2 of the national agreement of 22 June 1999 on working hours for the SYNTEC sector, was extended to all companies covered by the so-called SYNTEC collective agreement of 15 December 1987 (IDCC no. 1486).
It should be noted that the provisions of said article had been invalidated by the judgment of the Court of Cassation of 24 April 2013 (no. 11-28398 FS-PB), as they did not ensure the protection of safety and The employee's health was a concern regarding working hours.
Following this ruling, any individual fixed-rate agreement signed between an employer and an employee under this national agreement was considered null and void.
Consequently, the social partners negotiated new provisions that took into account the criteria that collective bargaining agreements must meet to be valid, as outlined in the amendment of April 1, 2014.
Article 4.2 is extended, subject to compliance with the case law of the Court of Cassation (Cass. soc, 31 January 2012, No. 10-17593), which specifies that an individual agreement for a fixed number of days per year must set the number of days worked and specify the methods of calculating the days or half-days worked and taking days or half-days of rest, and consequently that a simple reference by the employment contract to the provisions of the collective agreement or company agreement providing for the fixed number of days is insufficient.
The first paragraph of Chapter 2 is extended, subject to the condition that, pursuant to the provisions of Article L. 3121-39 of the French Labor Code, the agreement does not prevent the main characteristics of individual fixed-rate agreements from being established by a company or establishment agreement, provided that these agreements guarantee the protection of employees' safety and health, in accordance with the case law of the French Supreme Court (Cass. soc., May 14, 2014, No. 12-35033).
This amendment was initially applicable only to companies affiliated with the federations that were signatories to it.
It became applicable to all companies in the sector as of the date of publication of this decree for the remaining term and under the conditions stipulated in said amendment.
Therefore, individual fixed-rate agreements concluded between employees and their employers from this date onward, pursuant to the new provisions of the Syntec collective bargaining agreement, are now valid.
The reform relating to unemployment compensation
The agreement of May 14, 2014, concerning unemployment compensation, was approved by ministerial decree of June 25, 2014.
The decree of June 25, 2014, makes the provisions of the agreement applicable from July 1, 2014, mandatory, except for the provisions relating to rechargeable rights applicable from October 1, 2014.
Decree No. 2014-670 of June 24, 2014, incorporated these rules into the Labor Code in Article R. 5422-2 to take into account the new rechargeable rights system.
An initial UNEDIC circular dated July 2, 2014, outlines the rules for implementing the new provisions, which will be detailed and explained in the general presentation circular of September 30, 2014.
The agreement applies to employees whose employment contracts end on or after July 1, 2014, with the contract termination date being the end of the notice period, whether or not it is worked (French Labor Code, Art. L. 1234-4).
In the event of redundancy, the agreement applies to redundancies for which the procedure is initiated after June 30, 2014, i.e., from July 1, 2014. Therefore, any procedure initiated before June 30, 2014, falls under the agreement of May 6, 2011, its attached general regulations, and its appendices.
-
Extension of the "waiting period" for receiving unemployment benefits
Until July 1, 2014, a person unemployed after a dismissal or a negotiated termination had to wait a maximum of 75 days to receive benefits.
Now, Article 21 of the Unédic general regulations stipulates that when the amount of benefits received exceeds the legally mandated amount, this waiting period can be extended to 180 days, or 6 months.
This extension depends on the amount of the benefit: the higher the benefit, the longer the waiting period.
However, the extension of the waiting period will not apply to compensation paid in the event of redundancy.
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The "rechargeable rights" system
Unemployed individuals will be able to accrue unemployment benefits for each job they complete.
To qualify for these new benefits, they must have worked at least 150 hours, either in a single period or through several short-term contracts.
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Interim
Temporary workers will be subject to the rules of the general social security scheme, particularly regarding the "rechargeable rights" system.
Certain specific rules will remain in place, for example, concerning the calculation of a temporary worker's daily reference wage.
This recharge of rights is provided for in Articles 28 and 29 of the general regulations appended to the agreement of May 14, 2014.
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Combining unemployment and employment
The "reduced activity" scheme has been modified, as outlined in Articles 30 to 34 of the Unédic Regulations.
The possibility for an employee to combine unemployment benefits (ARE) with other benefits is no longer limited to 15 months, and the calculation rules have changed: 70% of gross salary is now deducted from the amount of the allowance received during periods of work.
-
Seniors over 65 years old
Until July 1, 2014, employees aged 65 and over were exempt from Unédic contributions.
Article 51 of the general regulations appended to the agreement removes the reference to the 65-year age limit.
A "specific solidarity contribution" is now in place, calculated on the same basis as unemployment insurance contributions: 6.40% (4% employer contribution and 2.40% employee contribution).
An employer contribution of 0.30% is also due for the AGS (Wage Guarantee Fund).
CASE LAW
A mobility clause applicable across the entire territory is sufficiently precise
Cass.soc.9 July 2014
According to established case law of the Court of Cassation, a mobility clause must precisely define its geographical area of application, otherwise it is void (Cass. soc. 12 July 2006, no. 04-45396; Cass. soc. 9 January 2013, no. 11-18790).
In a ruling published in the bulletin of 9 July 2014 (Cass. soc. 9 July 2014, no. 13-11906), the Court of Cassation held that the phrase "French territory" defines a sufficiently precise geographical area.
In this case, the disputed mobility clause was worded as follows:
"Given the nature of his duties, Mr. M. undertakes to accept any change of workplace necessitated by the interests of the company or the operation of the company within the geographical limits of French territory without this change constituting a modification of the employment contract."
The employees argued that the phrase "French territory" was imprecise because it did not exclude the French overseas departments and territories.
This argument was expressly rejected by the Court of Cassation, which held:
"The mobility clause precisely defined its geographical area of application and did not give the employer the power to unilaterally extend its scope."
The mention "French territory" is therefore not an invalidating mention.
Possibility of concluding a negotiated termination agreement during the suspension of the employment contract in the event of a work-related accident
Cass.soc. 30 September 2014
Under the provisions of Article L. 1226-9 of the French Labour Code, the employment contract of an employee whose employment contract is suspended due to a work-related accident or occupational disease can only be terminated for two specifically listed reasons:
"During periods of suspension of the employment contract, the employer may only terminate the contract if they can justify either serious misconduct on the part of the employee, or their inability to maintain the contract for a reason unrelated to the accident or illness."
This article, however, refers to the termination of the employment contract by the employer, namely dismissal.
This provision of the labor code does not address the question of whether or not a negotiated termination agreement can be concluded with an employee who is a victim of a workplace accident or occupational disease.
In its circular of March 17, 2009, concerning negotiated termination agreements (DGT Circular No. 2009-04 of March 17, 2009, concerning the negotiated termination of an open-ended contract), the labor administration considered that a negotiated termination agreement could not be signed during periods of suspension of the employment contract that are protected by law (maternity leave, workplace accident, occupational disease, etc.).
The Court of Cassation has ruled contrary to the labor administration's position.
In a ruling dated September 30, 2014, which was intended for wide publication (Cass. soc. September 30, 2014, No. 13-16297, PBR), the Court of Cassation expressly authorized the conclusion of a negotiated termination during a period of suspension of work following a work accident or occupational disease:
"But given that the Court of Appeal rightly held that, except in cases of fraud or vitiated consent, which were not alleged in this case, a negotiated termination agreement may be validly concluded pursuant to Article L. 1237-11 of the French Labor Code during the period following a work-related accident or occupational disease."
With this ruling, the Court of Cassation further strengthens the validity of negotiated termination agreements. It should be noted that the Court has already recognized the possibility of concluding such agreements
- In a context of conflict and in the event of long-term sick leave (Cass. soc. 30 September 2013, n°12-19711);
- Even if, at the time of the conclusion of the termination agreement, there is a dispute between the parties to the employment contract (Cass. soc. 15 January 2014, n°12-23942).
The only limitation imposed by the Court of Cassation is, apart from cases of fraud, the existence of a vitiated consent (mistake, deceit, duress).
However, the Court of Cassation has not yet ruled on the validity of a negotiated termination agreement concluded with an employee on maternity leave.
Opening an employee's mail and failing to respond to their requests for supplies raises a presumption of psychological harassment
Cass.soc. July 2, 2014
The burden of proof for the existence of psychological harassment rests primarily on the employee.
According to the provisions of Article L. 1154-1 of the French Labor Code, it is the responsibility of the employee (or the candidate for a job, internship, or training period):
"To establish facts that allow for the presumption of harassment. In light of these elements, it is incumbent upon the defendant to prove that these actions do not constitute such harassment and that its decision is justified by objective elements unrelated to any harassment."
The difficulty lies in determining the nature of the evidence an employee must provide to establish a presumption of workplace harassment.
In a ruling dated July 2, 2014 (Cass. soc. July 2, 2014, No. 13-10979), this issue was resolved in a case concerning an employer's opening of an employee's mail and the failure to respond within a reasonable timeframe to requests for supplies and work equipment.
Specifically, in a workplace harassment claim brought by an employee working as a technical assistant in the RATP logistics department, she presented evidence demonstrating that her employer had repeatedly opened her mail at her workplace and had failed to respond to her requests for stationery and various written complaints.
The Court of Cassation considered that such elements strongly suggested the existence of psychological harassment:
"In so ruling, when it had noted that the grievances alleged by the employee, based on the untimely opening of her mail by her supervisor and the failure to satisfy her requests for supplies and work equipment within reasonable timeframes, were materially established, and that there was also medical data produced by the employee, from which it followed that she produced elements allowing the existence of harassment to be presumed, such that it was incumbent upon the employer to justify that these actions were justified by objective elements unrelated to any harassment, the Court of Appeal, which did not draw the legal consequences from its findings, violated the aforementioned provisions;"
The late submission of documents intended for the employment center necessarily causes harm to the employee
Cass.soc. 17 September 2014
In legal proceedings initiated by an employee contesting the validity of his dismissal, he sought compensation for damages resulting from the late delivery of his termination documents.
Specifically, the employer provided the employee with his Pôle Emploi (French employment agency) certificate, after corrections, eight days after the end of his notice period.
Could this slight delay justify a judgment against the employer for late delivery of the documents?
The Court of Appeal ruled in the negative, finding that it was merely a minor delay and that the employee had not provided sufficient evidence of the resulting damages.
The Court of Cassation overturned the lower court's decision, finding, to our knowledge for the first time, that:
"The late delivery of these documents to the employee necessarily results in harm which must be remedied by the trial judges" (Cass. soc. 17 September 2014, n° 13-18850).
The employee therefore only needs to demonstrate the existence of a delay in the delivery of these end-of-contract documents to be entitled to claim specific compensation on this basis.
The statute of limitations for wage claims does not extend to actions for damages for separate harm
Cass.soc.9 July 2014
The law of June 14, 2013, concerning employment security (Law No. 2013-504 of June 14, 2013), reduced the statute of limitations for actions to recover unpaid wages from five years to three years (Article L. 3245-1 of the French Labor Code).
The general statute of limitations was itself reduced from 30 years to five years by the law of June 17, 2008 (Law No. 2008-561 of June 17, 2008; Article 2224 of the French Civil Code).
The question arises as to whether the statute of limitations for actions to recover wages excludes claims for damages to compensate for the harm resulting from the delay in payment of prescribed wages.
The Court of Cassation had to decide this question in a judgment of July 9, 2014 (Cass. soc. July 9, 2014, No. 13-23551).
In the case at hand, where the facts were still subject to the five-year and thirty-year statutes of limitations, a sales representative filed a claim for back pay nearly seven years after the date the wages in question became due, as well as a separate claim for damages resulting from the reduction in her unemployment benefits caused by the loss of earnings.
Her initial claim for back pay was logically dismissed by the lower court judges, who noted that the five-year statute of limitations had expired.
Was his second request destined to meet the same fate?
Yes, replied the lower court judges, who rejected the employee's claim for compensation for damages, on the grounds that "the five-year statute of limitations for the payment of a wage claim [excludes] any claim for damages relating to the prescribed period."
The Court of Cassation ruled against this, finding that the employee had provided evidence of specific harm distinct from the claim for payment of wages, and which should therefore fall under the statute of limitations applicable to claims for damages:
"In so ruling, when in support of her claim for damages the employee stated that the reduction unduly applied by the employer had resulted in a reduction of her unemployment benefits, which constituted a specific harm distinct from the claim for payment of wages, the Court of Appeal violated the aforementioned provisions" (Cass. soc. 9 July 2014, No. 13-23551).
In application of this solution, if the employee is able to provide evidence of harm distinct from his claim for back pay, in particular by demonstrating the bad faith of the employer, he would be entitled to claim compensation on this basis within 5 years of the events in question.
It is the employer's responsibility, not the employee's, to monitor the implementation of the daily work packages
Cass.soc. June 11, 2014
A ruling by the Court of Cassation on June 11, 2014 (Cass. soc. June 11, 2014, No. 11-20985) provides a further illustration of the rigorous oversight it exercises over the fixed-day work agreement system.
In its 2007 annual report, the Court of Cassation announced "enhanced monitoring of the application of the fixed-day work agreement system to employees, this attention being justified by the significant deviations from standard working time regulations that this type of agreement entails." (Annual Report of the Court of Cassation for 2007).
The Court of Cassation thus upheld the provisions of the national collective bargaining agreement for the metalworking industry relating to fixed-day work agreements, while also finding the employer liable for failing to comply with these provisions (Cass. soc. June 29, 2011, No. 09-71107).
However, the Court of Cassation invalidated the following collective bargaining agreement provisions due to their inadequacy:
- Chemistry (Cass. soc. 31 January 2012, n°10-19807);
- Technical design offices, known as Syntec (Cass. soc. 24 April 2013, n°11-28398): following this ruling, the social partners concluded on 1 April 2014 a sectoral agreement relating to the fixed day;
- Wholesale trade (Cass. soc. 26 September 2012, n°11-14540);
- Home care in rural areas (Cass. soc, June 13, 2012, No. 11-10854);
- Accounting firms and auditors (Cass. soc, May 14, 2014, No. 12-35033).
If a collective bargaining agreement or industry-wide agreement is deemed invalid, the employer can only remedy this situation through a company-level collective agreement that meets the requirements established by case law.
In its judgment of June 11, 2014 (Cass. soc. June 11, 2014, No. 11-20985), the Court of Cassation examined the validity of the provisions of the industry-wide collective bargaining agreement for the building and public works sector of November 6, 1998 (BTP) and a company-level collective agreement that had been concluded to address the alleged shortcomings of the industry-wide agreement.
However, the stipulations of both the BTP collective bargaining agreement and the company-level agreement placed the responsibility for monitoring compliance solely on the employee.
The Court of Cassation sanctioned this lack of employer involvement, ruling that neither the collective bargaining agreement for the construction industry nor the company agreement was sufficient to guarantee that the workload and working hours were reasonable and well distributed over time, and therefore to protect the employee's health and safety.
The Court of Cassation consequently concluded that the individual agreements for fixed daily working hours were null and void.
Note: On December 11, 2012, two amendments to the national collective bargaining agreement for the construction industry were concluded, defining detailed procedures for monitoring and controlling fixed-day work arrangements in order to comply with case law requirements.
Consequently, unless a specific amendment to the employment contract is included, fixed-day work arrangements concluded before the entry into force of the aforementioned amendments are null and void and may therefore give rise to overtime pay.
