Newsletter January 2018 – Social Law
Social Law – Arst Avocats presents its January 2018 newsletter covering current events in social law.
LEGISLATIVE AND REGULATORY NEWS
New obligation – the professional alert system
Law No. 2016-1691 of 9 December 2016 relating to transparency, the fight against corruption and the modernization of economic life – Decree No. 2017-564 of 19 April 2017, JO 20 April 2017.
CASE LAW
Social law
- Failure to distribute the dismissal letter – what are the risks?
- Non-occupational incapacity – what about the amount of severance pay…
- Resignation – the risks of failing to answer the questions of a transferred employee
- Salary disclosure – a serious offense
- Knowingly refusing to apply the correct professional classification – specific harm
Legislative and regulatory news
The implementation of a procedure for collecting reports issued by whistleblowers (the professional alert system)
What's new?
Since January 1, 2018, companies with at least 50 employees have been required to establish a procedure for collecting reports from whistleblowers.
How to establish the procedure for collecting alerts?
The choice is between: collective agreement or unilateral decision.
If you are part of a group of companies, the procedure can be established jointly.
What should this alert collection procedure include?
You must:
Determine the procedures by which the person making the report submits their alert and provides the facts, information or documents to support their report.
Plan the measures you will take:
- to inform your whistleblower employee without delay of the receipt of their report and of the reasonable time required to examine their report;
- to guarantee the confidentiality of the person making the report, the subject of the report and any persons concerned;
- in the absence of any follow-up to the report, to destroy the elements of the report file that could allow the identification of the whistleblower and that of the persons possibly targeted.
Specify the existence of an automated processing of reports implemented after authorization from the CNIL (National Commission for Information Technology and Freedoms)
Appoint a designated contact person. This contact person must have the necessary skills, authority, and resources to carry out their duties. This person may be an individual or any public or private entity, whether or not it has legal personality.
Once the procedure for collecting reports has been established, you must inform your employees and external and temporary collaborators. This information can be provided by any means (notification, posting, publication, etc.).
Case Law
Failure of the dismissal letter by the postal service
Cass. soc. November 30, 2017 (n°16-22569):
When an employer decides to dismiss an employee, they must notify the employee of their decision by registered letter with acknowledgment of receipt (Article L.1232-6 of the French Labor Code).
In the case of disciplinary dismissal, the sanction cannot be imposed less than two working days, nor more than one month, after the date set for the preliminary interview (Article L.1332-2 of the French Labor Code).
If written and reasoned notification is not provided within the prescribed time limits, the dismissal is deemed to lack a genuine and serious cause (French Supreme Court, Social Chamber, 23 June 1998, No. 96-41.688).
In a ruling dated 30 November 2017, a dismissal letter, sent within the required time limits by the employer to the employee's correct address following the preliminary interview, was returned by the postal service to the sender marked "inaccessible or incorrect address."
Is the dismissal valid?
The Court of Cassation has ruled that the employer is not responsible for failing to deliver the dismissal letter to the employee and that this failure to deliver it does not invalidate the dismissal for cause.
In practice, it is recommended to send the dismissal letter in part by hand delivery and/or by regular mail.
Incapacity for work of non-occupational origin and calculation of severance pay
Cass. soc. November 22, 2017 (n°16-13883):
In this case, an employee who was injured in a commuting accident was declared unfit for his position by the occupational physician and subsequently dismissed for this reason. He contested the amount of his severance pay, arguing that it should have been increased to account for the unserved notice period.
His claim was upheld.
This case provided the Court of Cassation with an opportunity to reiterate the provisions applicable to the calculation of severance pay in cases of non-occupational incapacity, as stipulated in Article L.1226-4 of the French Labor Code.
This article, in force since 2012, states that when an employee is dismissed for non-occupational incapacity, the notice period is not served and the employment contract is terminated on the date the dismissal is notified. The article further specifies that the notice period is nevertheless taken into account when calculating severance pay.
In other words, the employee is entitled to statutory severance pay calculated taking into account the notice period they were unable to work.
However, compensation in lieu of notice is not due.
Naturally, this provision only applies in the absence of more favorable collective bargaining agreements.
It should also be noted that in such a situation, the reference salary to be used for calculating statutory or contractual severance pay is, according to the formula most advantageous to the employee, that of the last twelve or three months preceding the work stoppage (French Supreme Court, Social Chamber, May 23, 2017, No. 15-22.223).
The aim of these solutions is to offset the reduction in earnings due to absences for illness so as not to disadvantage the employee when calculating severance pay.
Acknowledgment and modification of the scope and nature of an employee's duties
Cass. soc. 6 December 2017 (n°16-22019):
This ruling serves as a reminder to pay close attention to the concerns of employees facing a job transfer whose consequences for their role and career path are unknown to them.
The Court of Appeal, whose position was upheld by the Court of Cassation, reclassified a resignation as a dismissal without just cause, criticizing the employer for leaving an employee in limbo after the transfer. The employee had unsuccessfully inquired about the future of their role following the transfer.
In this particular case, an employee of the Findus group was transferred to a new branch as part of a relocation of operations from their previous site. During this transfer, the employee wrote to their employer to inquire about the future of their position at the new branch, but the employer did not reply.
The Court of Appeal held that the employer had committed a sufficiently serious breach to justify the employee's resignation, on the grounds that it had left the employee in a state of uncertainty regarding the scope and nature of their duties within the new agency.
The Court of Cassation upheld this position, stating: "Whereas, having assessed the facts and evidence, the Court of Appeal found that the employer, during a period of ongoing changes within the company, had seriously failed in its obligations by leaving the employee in a state of uncertainty regarding the nature and scope of their duties, without providing any concrete answers to their legitimate requests, and was therefore entitled to conclude that these breaches were such as to prevent the continuation of the employment contract."
In a period of restructuring that can generate anxiety and questions among employees, when these are formally expressed in writing, the employer is obligated, according to the Court of Cassation, to respond.
Disclosing salaries to certain employees can justify dismissal for gross misconduct
Cass. soc. November 22, 2017 (n°16-24069):
In its ruling of November 22, 2017, the Court of Cassation reiterated that dismissal for serious misconduct can be notified to an employee even in the absence of a prior disciplinary record.
In this case, the employee, an administrative manager, was dismissed for serious misconduct for disclosing to a colleague information considered confidential by her employer, namely the salary amounts received by some of her coworkers.
In support of her challenge to the dismissal, the employee argued, among other things, that she had no prior disciplinary record, an argument that the Court of Appeal deemed insufficient given the seriousness of the misconduct.
Seized with the challenge to the validity of the dismissal for serious misconduct notified to the employee, the Court of Cassation upheld the judgment rendered by the Court of Appeal on the grounds that:
“Whereas the Court of Appeal, having found that the employee had disclosed to another employee the amount of salaries received by some of her colleagues, thereby breaching the confidentiality rules incumbent upon her with regard to the duties performed and being likely to create difficulties within the company, was entitled to conclude that this breach constituted serious misconduct making it impossible to retain her in the company; therefore, the appeal is unfounded.”
The serious misconduct is justified here by the fact that the employee breached the obligation of confidentiality inherent in her position, a breach which was likely to create disruption within the company.
Disclosing salaries to certain employees can justify dismissal for gross misconduct
Cass. soc. November 23, 2017 (n°16-13429):
In its judgment of November 23, 2017, the Court of Cassation held that an employer's failure to apply the correct job classification to an employee causes the employee harm distinct from that related to the delay in payment of wages and paid leave, and entitles the employee to compensation on this basis.
In this case, an employee claimed the application of an "executive" classification, which was granted by the lower courts. The significance of this judgment lies in the fact that the lower courts also ordered the employer to pay damages, recognizing specific harm in this respect.
The employer, contesting the validity of this award of damages, appealed to the Court of Cassation, arguing in particular that the employee had failed to provide evidence of harm independent of the payment delay.
The Court of Cassation dismissed the appeal and upheld the lower court's judgment, basing its decision on the employer's clear bad faith:
"Whereas, having, based on its own and adopted grounds, found that the employer had long delayed implementing the recommendations of the labor inspector, without, however, compensating for this delay, and had long refused to take into account the employee's actual job classification, the Court of Appeal established the existence of harm independent of the delay in the payment of wages and paid leave by the employer, caused by the latter's bad faith; therefore, the argument is unfounded."
According to the highest court, this distinct harm is characterized by the employer's conduct, who, despite intervention by the labor inspectorate, persisted in bad faith for a considerable period in refusing to regularize the employee's situation.
