Summary
LEGISLATIVE AND REGULATORY NEWS
Work of minors in vocational training: Exemption for prohibited work
Decree No. 2015-443 of April 17, 2015
Professional security contract
Order of April 16, 2015
CASE LAW
CONTRACT AND PERFORMANCE OF THE EMPLOYMENT CONTRACT
Non-competition clause
Reduction of compensation depending on the method of contract termination
Fixed-term contract: Increased seasonal activity as a reason for using a fixed-term contract
TERMINATION OF EMPLOYMENT CONTRACT
Nullity of the dismissal of a protected employee Employee's refusal to return to their position and cap on compensation
Protected employee Cap on compensation in the event of a justified resignation
Transfer of the employment contract of a protected employee: Notification of the protected status to the new employer
Termination method
, Warranty of use: impact of the termination method
COLLECTIVE RELATIONS
Mandatory postings Posting and monitoring of working hours
Professional elections
Consequences of the cancellation of staff representative and works council member elections on the appointment of the health and safety committee
Economic and social unit
Example of recognition of an economic and social unit
LEGISLATIVE AND REGULATORY NEWS
Miners' labor
Under Article L. 4153-8 of the French Labor Code, workers aged 15 to 18 may not be employed in certain categories of work that expose them to risks to their health, safety, or morals, or that exceed their physical capabilities. This includes, in particular, work at height involving trees and work requiring exposure to very high temperatures.
However, young people in training may be granted exemptions for the least dangerous prohibited work. A decree of April 17, 2015, modifies this exemption system. It is no longer necessary to obtain authorization from the labor inspector. The employer or head of the establishment simply needs to submit a declaration. The exemption is valid for three years from the date the declaration is sent and must be renewed if necessary at the end of these three years (Article R.4153-44 of the French Labor Code). Therefore, a method of submission that provides proof of this date should be used.
The declaration must contain the following elements (Art. R. 4153-41 of the Labour Code):
- The sector of activity of the company or establishment;
- The professional training courses provided;
- The various known training locations;
- The prohibited work that may be subject to exemption necessary for vocational training and which is covered by the exemption declaration, as well as, where applicable, the machines whose use by young people is required to carry out this work and, in the event of maintenance work, the work in question and the work equipment;
- The quality or function of the competent person(s) responsible for supervising the young people during the execution of the aforementioned work.
In the event of any changes to the first two or fourth elements mentioned above, these must be updated and communicated to the labor inspector by any means providing proof of the date of notification within eight days of the changes occurring (Art. R.4153-42 of the French Labor Code). Any changes to the other information mentioned in the declaration must be made available to the labor inspector.
Finally, the employer or head of the establishment who declares a derogation must make available to the labor inspector, from the date each young person is assigned to the work in question, the relevant information (Art. R.4153-45 of the French Labor Code):
- The first name, last name and date of birth of the young person;
- To the vocational training undertaken, its duration and the known training locations;
- A medical opinion confirming fitness to perform this work;
- To the information and safety training provided for in Articles L. 4141-1 to L. 4141-3, given to the young person;
- To the first name(s), surname, and quality or function of the person or persons competent to supervise the young person during the execution of the work in question.
Professional security contract
On January 26, 2015, the social partners signed a new agreement with the State, extending the professional security contract scheme until December 31, 2016, with some modifications. This agreement was approved by the Ministry of Labor on April 15, 2015.
CASE LAW
Reduction of the non-compete clause depending on the method of contract termination
Soc. April 9, 2015 (n°13-25.847) FS-PB:
In this case, the employment contract included a non-competition clause with financial compensation set at 25% of the average remuneration received during the last twenty-four months in the event of dismissal and at 10% in the event of resignation.
1 Decree No. 2015-443 of 17 April 2015 relating to the derogation procedure provided for in Article L. 4153-9 of the Labour Code for young people under the age of eighteen
The parties having signed a termination agreement, the employee brought the matter before the labor court, notably seeking payment of the financial compensation stipulated in the non-compete clause. The Court of Appeal held that both employees who resign and those who sign a negotiated termination agreement demonstrate the same intention to leave the company and set the financial compensation for the non-compete clause at the amount applicable in the case of resignation.
The Court of Cassation, on the contrary, emphasized that any reduction by the parties, in the case of a specific method of terminating the employment contract, of the financial compensation for a non-compete clause must be deemed null and void. Consequently, the Court of Cassation held that the Court of Appeal, by refusing to apply the 25% compensation, which is not subject to reduction by the judge and entitles the employee to paid leave, violated Article L.1121-1 of the French Labor Code and the fundamental principle of the freedom to pursue a professional activity.
It is therefore not possible to vary the amount of the financial compensation for the non-competition obligation depending on the method of termination.
Reason for using a fixed-term contract
Soc. March 25, 2015 (n°13-27.695) FS-PB:
An employee was hired on a fixed-term contract for a period of three months to address a temporary increase in workload resulting from an order. The contract was stipulated that it could be renewed for an equal or longer period, not exceeding eighteen months in total. During a period of sick leave following a workplace accident, the employer informed the employee that his contract would end on the originally scheduled date. The employee then filed a claim with the labor court seeking to have his fixed-term contract reclassified as a permanent contract. In support of his claim, the employee argued, among other things, that his contract had been concluded to fill a position corresponding to the company's normal business activity and should therefore be reclassified.
The Court of Appeal rejected the request for reclassification based on the existence of a seasonal need.
The Court of Cassation dismissed the employee's appeal. According to the Court, "after noting that the employment contract had been concluded (...) to address a temporary increase in activity and that the employer carried out the usual activity of handling tires, the Court of Appeal, having observed the existence, even if linked to additional production adapted to winter, of an increase in activity during the period for which the contract had been concluded, legally justified its decision without altering the subject matter of the dispute."
Refusal of an employee whose dismissal is deemed invalid to return to their position and the cap on compensation
Soc. April 15, 2015 (n°13-24.182) FS-PBR:
An employee, an alternate staff representative, was declared permanently unfit for her position and subsequently dismissed for incapacity and the impossibility of reassignment, without the employer having sought authorization from the labor inspector. The employee appealed to the labor court seeking to have her dismissal overturned. The Court of Appeal granted the employee's request and ordered the employer to pay her compensation equivalent to the salary she would have received until the end of the protected period, i.e., forty months' salary. The employer then challenged this ruling on the grounds that an employee whose dismissal is null and void and who refuses reinstatement waives the right to invoke the nullity of the termination.
The Court of Cassation partially overturned the judgment. It first reiterated that an employee whose dismissal is null and void may refuse reinstatement offered by the employer without thereby waiving the right to invoke the nullity of the termination. However, the Court overturned the employer's order to pay compensation equivalent to forty months' salary. According to the Court of Cassation, a staff representative who does not request the continuation of an illegally terminated employment contract is entitled to compensation for violation of their protected status equal to the salary they would have received from their dismissal until the end of the protected period, up to a maximum of two years, the minimum legal term of their mandate, plus six months.
The compensation is therefore capped at 30 months' salary, even though the 2005 law extended the term of office from two to four years.
Resignation of a protected employee: amount of compensation
Soc. April 15, 2015 (n°13-27.211) FS-PBR:
An employee who had been summoned to a preliminary interview was elected as a staff representative. When authorization for her dismissal was refused, the employee ultimately acknowledged the termination of her contract and filed a claim with the labor court. The Court of Appeal ruled that the acknowledgment of termination was justified and had the same effect as a void dismissal. Consequently, it ordered the employer to pay compensation equivalent to fifty-two months' salary.
The Court of Cassation overturned the Court of Appeal's decision. According to the Court of Cassation, a staff representative whose acknowledgment of termination has the same effect as a void dismissal when the alleged facts justify it is entitled to compensation for violation of their protected status equal to the remuneration they would have received from their removal until the end of the protected period, up to a maximum of two years, the minimum legal term of their mandate, plus six months.
The compensation is therefore capped at 30 months of salary, although the 2005 law extended the term of office from 2 to 4 years.
Transfer of the protected employee
Soc. April 15, 2015 (n°13-25.283) FS-PBR:
The Court of Cassation clarifies that in the event of a transfer, the mere continuation of the employment contract pursuant to Article L. 1224-1 of the French Labor Code does not automatically make the new employer aware of any protection afforded to an employee by virtue of holding a position outside the company. It is therefore incumbent upon the employee claiming such protection to prove that they informed the new employer of the existence of this position no later than the preliminary dismissal interview, or, if the termination does not require a preliminary interview, no later than before notification of the termination, or that the new employer was aware of it.
Job security clause
Soc. April 15, 2015 (n°13-21.306) FS-PB:
In this case, an employee on sick leave and then disability leave was dismissed for incapacity and the impossibility of reassignment. The Court of Appeal ordered the employer to pay various sums, notably in execution of a job security clause.
According to the Court of Cassation, "a contract containing a job security clause can only be terminated during the period covered by the guarantee in the event of mutual agreement, serious misconduct by the employee, or force majeure." It follows that the termination, which stemmed from a situation of workplace harassment suffered by the employee, did not result from any of these causes, thus justifying the employer's liability.
Display and control of working time
Crime. April 14, 2015 (n°14-83.267) F-PB:
In this case, a labor inspector noted the failure to record or post working hours and reminded the employer, by letter, of their obligations in this regard. As the employer did not respond, a reminder letter was sent. The labor inspector then conducted a follow-up inspection during which, in the employer's absence, the employee stated that working hours were neither recorded nor posted. Considering that he was unable to monitor and verify the actual working hours, the inspector issued a report for obstruction. The employer was then found guilty of this offense by the court and appealed the judgment. The Court of Appeal acquitted the defendant.
The Court of Cassation notes that the defendant had been repeatedly reminded to fulfill his obligations in order to allow for the monitoring of the application of the provisions relating to working hours and their organization on the farm he managed, and that these reminders had remained without effect. Consequently, the Court quashes the appeal court's judgment.
Consequence of the cancellation of professional elections
Soc. April 15, 2015 (n°14-19.139) FS-PB:
Employee representatives and works council members, who are part of the company's representative body, appointed the members of the Health, Safety and Working Conditions Committee (CHSCT). The elections of employee representatives and works council members having been annulled, some employees requested the annulment of the CHSCT appointments.
According to the Court of Cassation, the annulment of the elections of works council members and employee representatives only deprives elected employees of their status as members of these employee representative bodies from the date of the annulment. Consequently, the annulment of the elections of employee representatives and works council members on April 1, 2014, had no bearing on the validity of the CHSCT elections held on March 31 of the same year.
Definition of an economic and social unit (ESU)
Soc. April 15, 2015 (n°13-24.253) FS-PB:
The employees of a company were transferred and distributed among four companies, the first of which was the sole shareholder. A union and an employee then petitioned the lower court to have a single economic and social unit (UES) recognized among these four companies. The Court of Appeal granted this request.
The Court of Cassation upheld the ruling. In support of its decision, the Court noted, firstly, the concentration of power by the company that was the sole shareholder of each of the four companies, and their complementarity in that they all contributed to the renovation of gas pipelines and high-voltage power lines for the benefit of ERDF and GRDF. Secondly, it held that the employees, all from the same company and holding similar employment contracts, were mobile between the companies in question, were subject to the same collective bargaining agreement, and benefited from identical specific advantages.
