Newsletter n°19 – social law
SUMMARY
REGULATIONS
- Fraud in the posting of workers and illegal work
Decree of 30 March 2015 - Wage portage
Ordinance of April 2, 2015 - National collective agreement for architectural, urban planning and environmental consultants
Order of March 11, 2015
JURISPRUDENCE
I. Contract and execution of the employment contract
… of March 11, 2015 Mention relating to the precariousness allowance in the interim contract
… of March 18, 2015 Compensatory time and rest account
II. Termination of the employment contract
… of March 17, 2015 Professional security contract
… of March 25, 2015 Reclassification: prior consultation of staff representatives
… of April 9, 2015 Wearing religious symbols in the workplace
… of March 17, 2015
Discrimination based on age – Intergenerational pact
… of March 11, 2015 Waiver of the non-competition clause
… of March 25, 2015
Terms of termination of the employment contract
… of March 3, 2015
Termination by agreement and limitation period for disciplinary proceedings
… of March 3, 2015
Termination and exercise of disciplinary power of the employer
… of March 25, 2015
Effect of the conclusion of a transaction between the signature and the approval of the termination
… of April 1, 2015
Tax regime applicable to the transaction
… of March 31, 2015
Calculation of the guarantee of the AGS: ceiling of receivables
… of March 31, 2015
Salaries due in the event of dismissal without real and serious cause
… of March 31, 2015
Dismissal – Proof
… of March 27, 2015
Dismissal of a protected employee
…
March 31, 2015 Employee fundamental freedoms
Regulations
Fight against unfair social competition
The decree of March 30, 20151 is issued for the application of certain provisions of the law of July 10, 2014 aimed at combating unfair social competition2 and for the transposition of directives relating to the posting of workers3.
The law aimed at combating unfair social competition introduced new obligations both for the employer who seconded staff and for the client.
The decree of March 30, specifies these obligations, the methods of implementation of these and sanctions in the event of non-observance of these rules. Obligation to make a prior declaration to the labor inspectorate
The decree specifies the obligations that are now incumbent on employers established outside France who post employees to France in terms of:
- prior declaration of this secondment;
- appointment of a representative in France;
- retention of documents to be presented in the event of an inspection.
Similarly, the procedures for implementing the co-contracting party's liability in the event of a breach of the obligation to make a prior declaration or appoint a representative, as well as the penalties incurred, are set by this new text.
The conditions under which copies of the posting declarations are appended to the single personnel register of the company hosting the posted employees are determined by the decree.
Obligation of vigilance
The law has created an obligation of vigilance for the contracting authority and the principal in terms of accommodation and in terms of the application of social legislation. The decree specifies the conditions for implementing the obligation of vigilance and the liability of project owners and principals vis-à-vis subcontractors and co-contractors.
Legal action by trade unions
The power of trade unions to take legal action has been extended by the effect of the law aimed at combating unfair social competition. Unions can now act in favor of employees even in the absence of a mandate on their part. To this end, the decree specifies the procedures for informing employees by the trade unions.
Wage portage
The government has issued an ordinance4 relating to wage portage. Published in the official journal of April 3, 2015, the ordinance defines wage portage and specifies the conditions for recourse and prohibition of recourse to portage. In addition, the text determines the nature and specificities of the contracts binding respectively the carried employee and the client company to the carrying company. Finally, the ordinance provides for the conditions for the exercise of their activity by umbrella companies.
Collective agreements
Under the terms of the decree of March 11, 2015 extending an amendment to the national collective agreement for architecture, town planning and environment councils (no. 2666), the provisions of amendment no. 18 of May 13, 2014 relating to the modification of the mandatory pension plan and portability, to the aforementioned national collective agreement are made mandatory for all employers and all employees included in the scope of the national collective agreement for councils of architecture, town planning and the environment of May 24, 2007.
Case law
Mention relating to the precariousness allowance in the interim contract
Soc. March 11, 2015 (n°12-27.855) FS-PB:
The Court of Cassation ruled on the scope of the omission of the mention relating to the so-called “insecurity” or “end of mission” indemnity in a temporary employment contract. The Court thus specified that "subject to fraudulent intent on the part of the employee, failure by the temporary employment company to comply with one of the requirements of the provisions of Article L. 1251-16 of the Labor Code, which are intended to guarantee that the conditions have been observed, failing which any labor loan operation is prohibited, implies the reclassification of his contract as a contract of indefinite duration”.
Time savings account and compensatory rest
Soc. March 18, 2015 (No. 13-19.206) FS-PB: If it results from the provisions of Articles L. 3121-24 and D. 3121-10 of the Labor Code that the employer may, in the absence of a request from the employee to take the mandatory rest compensation, impose on this employee, within a maximum period of one year, the day or days of effective rest taking, these provisions are not applicable to replacement compensatory rest days assigned to a time savings account.
Professional security contract
Soc. March 17, 2015 (n°13-26.941) FS-PB:
The Court rules for the first time on the implementation of the professional security contract (CSP) set up in 2011. In this case, during an interview prior to dismissal for economic reasons, an employee is offered membership in a CSP.
The employee joined the CSP and then seized the industrial tribunal with claims for compensation for irregular dismissal without real and serious cause.
The Court of Appeal noted that the employer had not put in place the staff delegates while it was subject to this obligation and that no deficiency report had been drawn up.
Consequently, the court considered that the damage suffered by the employee should be repaired. The Court of Cassation rejected the employer's appeal according to which membership of a CSP deprives the employee of the possibility of contesting the regularity of the dismissal procedure. In fact, according to the Court, signing up to a professional security contract constitutes a form of dismissal for economic reasons and does not deprive the employee of the right to obtain compensation for the damage caused to him by the irregularity of the letter invitation to the preliminary interview.
Reclassification: prior consultation with staff representatives
Soc. March 25, 2015 (No. 13-28.229) FS-PB:
In this case, an employee declared unfit for his position and then dismissed seized the industrial tribunal for payment of damages for non-compliance with the dismissal procedure.
The Court of Appeal held that the employee refused two reclassification offers, without consulting the staff representatives, and rejected his requests.
The Court of Cassation quashed on the grounds that the opinion of staff representatives on the reclassification of the employee must be obtained after the incapacity of the employee as a result of an accident at work or an occupational disease has been established, and before the offer to the interested party of a redeployment post appropriate to his abilities.
Wearing religious symbols in the workplace
Soc. April 9, 2015 (n°13-19.855):
The Social Chamber refers the following question to the Court of Justice of the European Union: "The provisions of Article 4 §1 of Council Directive 78/2000/EC of 27 November 2000 establishing a general framework in favor of equal treatment in matters of employment and occupation, must they be interpreted as constituting a genuine and determining occupational requirement, by reason of the nature of a professional activity or the conditions in which it is exercised, the wish of a client of an IT consulting company to no longer see the IT services of this company provided by an employee, a design engineer, wearing an Islamic headscarf? »
Discrimination based on age – Intergenerational pact
Soc. March 17, 2015 (No. 13-27.142) FS-PB:
Ski instructors have seized the High Court to obtain the cancellation of the intergenerational pact, adopted by the national union of French ski instructors, organizing the reduction of activity of instructors from the age of 62. The Court of Appeal held that the integration of young new graduates is a legitimate objective and rejected the instructors' request. The Court of Cassation censures the reasoning of the Court of Appeal. It considers that the Court of Appeal should have sought, on the one hand, that the difference in treatment based on age was objectively and reasonably justified by a legitimate objective of general interest and, on the other hand, that the means to achieve this objective were appropriate and necessary.
Waiver of the non-competition clause
Soc. March 11, 2015 (n°13-22.257) FS-PB:
In this case, an employment contract provided for a non-competition clause for a period of one year from the termination of the employment contract.
Renewable once, the clause specified that the company could lift or reduce the prohibition of competition, by registered letter with acknowledgment of receipt and at the latest within eight days following the notification of termination of the employment contract. The employer released the employee from his non-competition obligation by letter of April 7, 2010 and then dismissed him on June 28, 2010. The employee then seized the industrial tribunal. The Court of Appeal considered that the employee was unfounded in maintaining that the employer could not waive the clause before notification of the termination of the employment contract insofar as the contract stipulated that the employer could waive the benefit of the non-competition clause, on the sole condition that this waiver is notified to the employee before the expiry of a period of eight days from the notification of the termination.
The Court of Cassation overturned the judgment of the Court of Appeal. In support of its decision, the Court first specified that "the non-competition clause, the validity of which is subject to the existence of financial consideration, is stipulated in the interest of each of the parties to the contract of work”. The Court deduces from this that “the employer cannot, unless otherwise stipulated, unilaterally waive this clause, during the performance of this agreement”.
Terms of termination of the employment contract
Soc. March 25, 2015 (No. 14-10.149) FS-PB:
An employee and her employer signed a termination three days after the employee returned from maternity leave.
The employee then seized the industrial tribunal with claims relating both to the execution and to the termination of the contract. According to the employee, the break, concluded, during the period of protection following the maternity leave is null. The Court of Cassation confirms the judgment of the Court of Appeal rejecting this request and recalls that except in the event of fraud or defect of the consent, not invoked in this case, a conventional breach can be validly concluded during the periods suspension of the employment contract to which the employee is entitled under her maternity leave, as well as during the four weeks following the expiry of these periods. However, the Court of Cassation partially quashed the appeal judgment insofar as it rejected the claim for damages based on the existence of wage discrimination. Indeed, the Court of Cassation specified that the Court of Appeal had to carry out a comparative analysis of the situation, functions and responsibilities of the person concerned with those of the other sales engineers and not simply note that the employee worked in another geographical area than another sales engineer to consider that the two employees were not in comparable situations and to reject the employee's request.
Termination by agreement and limitation period for disciplinary proceedings
Soc. March 3, 2015 (n°13-23.348) FP-PB:
An employer and an employee signed a termination on October 28, 2010 but the employee retracted the following November 5.
On November 16, the employee was called to an interview prior to dismissal, which was notified to him on December 6 for absences without authorization. The Court of Appeal noted that the disciplinary proceedings were initiated late and considered that the dismissal was without real and serious cause. The employer lodged an appeal and invoked in particular the fact that the limitation period for initiating disciplinary proceedings which may go as far as dismissal is interrupted by any act unequivocally showing the employer's will to title the consequences of the wrongful acts.
The Court of Cassation dismissed the appeal because the conventional breach is not an act interrupting the two-month prescription provided for by article L.1332-4 of the [object Object] of work.
Termination and exercise of the employer's disciplinary power
Soc. March 3, 2015 (n°13-15.551) FP-PB:
In this case, an employee summoned for June 7, 2010 to an interview prior to a possible dismissal, signed that same day an agreement to terminate the employment contract and then exercised his right of withdrawal by letter of June 16, 2010. Summoned by letter of June 21, 2010 to a new interview prior to a possible dismissal set for the following June 28, he was dismissed for serious misconduct by letter of July 1, 2010.
Dismissed by the Court of Appeal of his request for a judgment that the dismissal was not justified by serious misconduct, the employee files an appeal before the Court of Cassation.
In support of this appeal, the employee claims that the employer, who chooses, on the date when he had exact and complete knowledge of facts attributable to the employee, to offer him a conventional termination of his employment contract, waives, in so doing, to initiate disciplinary proceedings against him and for these same facts. The Court of Cassation upholds the appeal decision because the signature by the parties to the employment contract of a conventional termination, after the initiation of a disciplinary procedure for dismissal, does not entail a waiver by the employer of the exercise of its disciplinary power. Consequently, if the employee exercises his right of withdrawal from the conventional termination, the employer is entitled to resume the disciplinary procedure by summoning the employee to a new preliminary interview in compliance with the provisions of Article L. 1332-4 of the Labor Code and to pronounce a sanction, including dismissal for serious misconduct.
Effect of the conclusion of a transaction between the signature and the homologation of the rupture
Soc. March 25, 2015 (No. 13-23.368) FS-PB:
The Social Chamber recalls that an employee and an employer who have signed a severance agreement can only validly conclude a transaction, on the one hand, if this takes place after the approval of the conventional severance by the administrative authority. , on the other hand, only if its purpose is to settle a dispute relating not to the termination of the employment contract but to its execution on elements not included in the termination agreement.
Transaction: tax regime
CE April 1, 2015 (n°365253):
In return for the withdrawal of a procedure before the industrial tribunal following a formal deed, an employee received compensation for a transaction with his employer. The tax authorities included this allowance in the taxable income and the Court of Appeal rejected the request for discharge of the additional income tax contribution presented by the employee. The Council of State quashes the judgment of the Court of Appeal on the grounds that it should have determined whether the person concerned established that the disputed settlement compensation could be assimilated to compensation following a dismissal without real cause and seriously in order to determine whether he could benefit from the income tax exemption provided for by article 80 duodecies of the general tax code.
Calculation of the AGS guarantee: ceiling of receivables
Soc. March 31, 2015 (No. 13-21.184) FS-PB:
The determination of the maximum amount of the AGS guarantee is assessed on the date on which the employee's claim arose and at the latest on the date of the judgment approving the plan or pronouncing the compulsory liquidation. When the wage claims, because of the different dates on which they were born, come under different ceilings, these ceilings are respectively applicable to them, within the overall limit of the highest ceiling then applicable.
Salaries due in the event of dismissal without real and serious cause
Soc. March 31, 2015 (No. 13-27.196) FS-PB:
In this case, an employee dismissed for serious misconduct is invited by the notification letter to seize the disciplinary council set up by the collective agreement.
The Court of Appeal ruled the dismissal without real and serious cause. As such, it sanctioned the non-respect of the conventional procedure and condemned the employer to pay wages from the notification of the dismissal until the date of the opinion of the commission. As no salary was due by the employer for the period after the notification of a dismissal which entails the immediate termination of the contract, the Court of Cassation partially quashed the appeal judgment.
Dismissal – proof
Soc. March 31, 2015 (No. 13-24.410) FS-PB:
In the context of a dispute between an employee dismissed for serious misconduct and his employer, the Court of Appeal rejected the employer's counterclaim seeking to condemn the employee under penalty to destroy the copy of a hard disk on the grounds that the documents produced by the employer do not make it possible to retain that there is a risk of use of the documents for commercial purposes.
The Court of Cassation reverses the judgment. According to the Court, in so deciding, without examining whether the employee established that the documents in question were strictly necessary for the exercise of his rights of defense in the dispute between him and his employer on the occasion of his dismissal, the Court of Appeal deprived its decision of legal basis.
Dismissal of a protected employee
CE March 27, 2015 (n°371174):
In this case, a protected employee used 105 hours of delegation to exercise a salaried activity within another company. The Administrative Court of Appeal relied on the fact that these acts had not been carried out during the execution by the person concerned of her employment contract and considered that the dismissal of this employee could not be justified. According to the Council of State, an act of the employee occurring outside the performance of his employment contract cannot justify a dismissal for misconduct, unless it reflects the ignorance by the person concerned of an obligation arising from this contract. . The use by a protected employee of his hours of delegation to carry out another professional activity disregards the obligation of loyalty towards his employer which arises from his employment contract. Consequently, the Council of State annuls the appeal decision.
Employee fundamental freedoms
Soc. March 31, 2015 (No. 13-25.436) FS-PB:
A qualified road worker for a motorway concession company is dismissed for serious misconduct, in particular for having been found in a state of alcoholic impregnation at his place of work. The latter requests the nullity of the dismissal. To this end, the employee invokes the violation of a fundamental freedom resulting from the use of an alcohol test outside the workplace in disregard of the procedures prescribed by the internal regulations. The Court considers, on the contrary, that the use of a blood alcohol test to establish the state of intoxication of an employee at work does not constitute an infringement of a fundamental freedom, since, having regard to the nature of the work entrusted to this employee, such a state of intoxication is likely to expose people or property to danger, and that the methods of this control, provided for in the internal regulations, allow it to be challenged, regardless of whether it is carried out, for technical reasons, outside the company.
1 Decree No. 2015-364 of March 30, 2015 on the fight against fraud in the posting of workers and the fight against illegal work
2 Law no. 2014-790 of July 10, 2014 aimed at combating unfair social competition
3 Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 relating to the implementation of Directive 96/71/EC concerning the posting of workers 4 Ordinance no. 2015-380 of 2 April 2015 relating to wage portage
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Newsletter n° 19 – Social law
