Newsletter January 2018 – Employment Law
Employment law – Arst Avocats presents its January 2018 newsletter on employment law news.
LEGISLATIVE AND REGULATORY NEWS
New obligation – the whistleblowing system
Law n°2016-1691 of December 9, 2016 relating to transparency, the fight against corruption and the modernization of economic life – Decree n°2017-564 of April 19, 2017, JO April 20, 2017.
JURISPRUDENCE
Social right
- Non-distribution of the dismissal letter – what risk?
- Non-professional incapacity – what about the amount of the severance pay…
- Recognition – the risks of failure to respond to the questions of a transferred employee
- Disclosure of wages – a gross misconduct constituted
- 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 whistleblowing system)
New?
Since January 1, 2018, companies with at least 50 employees are required to establish a procedure to collect reports from whistleblowers.
How to establish the procedure for collecting alerts?
Choice: by collective agreement or unilateral decision.
If you are part of a group of companies, the procedure can be established jointly.
What should this procedure for collecting alerts provide?
You have to :
Determine the terms under which the author of the report sends his alert and provides the facts, information or documents to support his report.
Plan the steps you will take:
- to inform your whistleblower employee without delay of the receipt of his report and of the reasonable time required to examine his report;
- to guarantee the confidentiality of the author of the report, the subject of the report and any persons concerned;
- in the absence of follow-up given to the report, to destroy the elements of the report file likely to 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 (Commission Nationale de l'Informatique et des Libertés)
Designate a referent. This referent must have the competence, authority and means sufficient to carry out his duties. This may be a natural person or any public or private law entity, whether or not with legal personality.
Once the procedure for collecting reports has been established, you must inform your employees and your external and occasional collaborators. This information is provided by any means (notification, display, publication, etc.).
Case law
Non-distribution of the dismissal letter by La Poste
Cas. soc. November 30, 2017 (n°16-22569):
When the employer decides to dismiss an employee, he notifies him of his decision by registered letter with acknowledgment of receipt (Article L.1232-6 of the Labor Code).
In the event of a disciplinary dismissal, the sanction cannot intervene less than two working days, nor more than one month after the day set for the preliminary interview (Article L.1332-2 of the Labor Code).
In the absence of written and reasoned notification within the prescribed deadlines, the dismissal is devoid of real and serious cause (Cass. soc. 23-6-1998 n° 96-41.688).
In a judgment of November 30, 2017, the letter of dismissal, notified within the deadlines by the employer to the exact address of the employee and following the preliminary interview, was returned by post to the sender with the mention "failure to access or address. »
Is the dismissal valid?
The Court of Cassation considers that the employer is not responsible for the non-distribution of the letter of dismissal to the employee and that this failure to deliver does not deprive the dismissal of real and serious cause.
In practice, it is recommended to double the sending of the letter of dismissal by a letter delivered by hand and/or by sending a simple letter.
Incapacity of non-professional origin and calculation of severance pay
Cas. soc. November 22, 2017 (n°16-13883):
In this case, an employee who suffered a commuting accident was declared unfit for his job by the occupational doctor, then dismissed for this reason.
In particular, he disputed the amount of the severance pay paid to him, considering that it should be supplemented by taking into account the length of the notice not given. His request was granted.
This case is an opportunity for the Court of Cassation to recall the provisions applicable to the calculation of severance pay in the event of incapacity of non-professional origin provided for by article L.1226-4 of the Labor Code .
This text, applicable since 2012, provides that, when the employee is dismissed for incapacity of non-professional origin, the notice is not executed and the employment contract is terminated on the date of notification of the dismissal.
The text also specifies that the notice is nevertheless taken into account for the calculation of the severance pay. In other words, the employee is entitled to the legal severance pay calculated taking into account the period of notice that he has not been able to perform.
The indemnity in lieu of notice, on the other hand, is not due.
Naturally, this mechanism only applies in the absence of more favorable contractual provisions.
It should also be remembered that in such a situation, the reference salary to be taken into account for the calculation of the legal or contractual dismissal indemnity is, according to the most advantageous formula for the employee, that of the last twelve or three months preceding the work stoppage (Cass. soc. 23 May 2017 n° 15-22.223).
The objective of these solutions is to compensate for the reductions in remuneration linked to absences due to illness so as not to disadvantage the employee when calculating severance pay.
Acknowledgment and modification of the scope and nature of an employee's missions
Cas. soc. December 6, 2017 (No. 16-22019):
This judgment is an invitation to be attentive to the questions of employees faced with a change of which they are unaware of the consequences on their function and their professional future.
The Court of Appeal, whose position was confirmed by the Court of Cassation, in fact reclassified a formal dismissal as a dismissal without real and serious cause, accusing the employer of having left "in expectation" an employee who has been transferred and who has questioned, in vain, his employer on the evolution of his function following this transfer.
In this case, an employee of the Findus group was transferred to a new agency as part of a transfer of activity from the site to which he was assigned to another site. Within the framework of this transfer, the employee questioned, by mail, his employer on the future of his functions within the new agency, letter to which the employer did not answer.
The Court of Appeal considered that the employer committed a sufficiently serious breach justifying the taking of action by the employee on the grounds that it would have left the employee "waiting on the scope and nature of his missions" at the within the new agency.
The Court of Cassation validated this position, retaining: "Whereas, then, having sovereign assessment of the facts and evidence, the Court of Appeal found that the employer, in a period when changes were in progress in the company, had seriously breached his obligations by leaving the employee waiting on the nature and scope of his missions, without providing any concrete response to his legitimate requests, and was able to deduce that these breaches were of a prevent the continuation of the employment contract.
In a period of restructuring which can generate concern and questions among employees, when these are expressed formally in a letter, the employer must, according to the Court of Cassation , answer to.
Disclosing salaries to certain employees may justify dismissal for serious misconduct
Cas. soc. November 22, 2017 (n°16-24069):
In this judgment of November 22, 2017, the Court of Cassation recalls that a dismissal for serious misconduct can be notified to the employee even in the absence of a disciplinary history.
In this case, the employee, an administrative manager, was dismissed for serious misconduct for having disclosed to an employee information considered confidential by her employer, namely the amounts of wages received by some of her co-workers.
In support of the challenge to her dismissal, the employee argued in particular that she had no disciplinary history, an argument that the Court of Appeal deemed insufficient in view of the seriousness of the fault committed.
Seized of the contestation of the merits of the dismissal for serious misconduct notified to the employee, the Court of Cassation confirmed the judgment rendered by the Court of Appeal on the grounds that: "But given that the Court of Appeal which
found that the employee had disclosed to an employee the amount of wages received by some of his colleagues, thus breaching the rules of confidentiality incumbent on him with regard to the functions performed and being likely to create difficulties within the company, was able to infer that this breach constituted serious misconduct making it impossible for him to remain in the company;
that the plea is unfounded”. Serious misconduct is here justified by the fact that the employee breached the obligation of confidentiality inherent in her position, a lack of knowledge which was likely to create problems in the company.
Disclosing salaries to certain employees may justify dismissal for serious misconduct
Cas. soc. November 23, 2017 (n°16-13429):
In this judgment of November 23, 2017, the Court of Cassation considered that the fact for the employer not to apply to the employee his exact classification causes him a prejudice distinct from that relating to the delay in payment of wages and paid holidays. and entitles you to compensation for this.
In this case, an employee claimed the application of a “managerial” classification granted to him by the trial judges.
The interest of this judgment lies in the fact that the latter also condemned the employer to pay him damages by acknowledging a specific prejudice in this respect. The employer, contesting the merits of this condemnation to have to pay such damages, seized the Court of Cassation, arguing in particular that the proof of damage independent of the delay in payment was not reported by the employee.
The Court of Cassation dismissed the appeal and upheld the judgment under appeal, motivating its decision by the employer's characterized bad faith:
"But given that having, on its own and adopted grounds, noted that the employer had long delayed in applying the recommendations of the labor inspector, without however compensating for this delay, and had long refused to take into account the actual classification of the employee, the Court of Appeal highlighted the existence of an independent prejudice the delay in payment of wages and holidays paid by the employer, caused by the latter's bad faith that the plea is unfounded”.
For the High Court, the distinct damage is characterized by the attitude of the employer, who despite an intervention by the labor inspectorate, in bad faith and for a substantial period, persisted in his desire not to regularize the employee's situation.
