2. Time savings account and compensatory rest
3. Professional Security Contract
4. Reassignment: prior consultation with staff representatives
5. Wearing religious symbols in the workplace
6. Age discrimination – Intergenerational pact
7. Waiver of the non-competition clause
8. Terms and conditions for termination of the employment contract
9. Negotiated termination and the statute of limitations for disciplinary proceedings
10. Termination and exercise of the employer's disciplinary power
11. Effect of concluding a settlement agreement between the signing and the approval of the termination
12. Tax regime applicable to the transaction
13. Calculation of the AGS guarantee: ceiling on claims
14. Wages due in the event of dismissal without just cause
15. Dismissal – Evidence
16. Dismissal of a protected employee
17. Fundamental freedoms of the employee
1. Clause relating to the end-of-contract bonus in the temporary employment contract
Soc. March 11, 2015 (No. 12-27.855) FS-PB:
The Court of Cassation ruled on the implications of omitting the clause relating to the so-called " end-of- assignment " or " " allowance in a temporary employment contract.
The Court specified that " subject to fraudulent intent on the part of the employee, the temporary employment agency's failure to comply with any of the requirements of Article L. 1251-16 of the French Labor Code, which aim to ensure compliance with the conditions under which any temporary staffing arrangement is prohibited, results in the reclassification of the contract as a permanent employment contract ."
2. Time savings account and compensatory rest
Soc. March 18, 2015 (No. 13-19.206) FS-PB:
If it follows 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 compensatory rest, impose on this employee, within a maximum period of one year, the day or days of actual rest, these provisions are not applicable to compensatory rest days allocated to a time savings account.
3. Professional Security Contract
Soc. March 17, 2015 (No. 13-26.941) FS-PB:
The Court ruled for the first time on the implementation of the Professional Security Contract (CSP) established in 2011. In this case, during a preliminary meeting prior to dismissal for economic reasons, an employee was offered membership in a CSP.
The employee joined the CSP and then filed a claim with the labor court seeking compensation for wrongful dismissal and dismissal without just cause.
The Court of Appeal noted that the employer had not appointed employee representatives, despite being subject to this obligation, and that no official report of failure to do so had been drawn up. Consequently, the court held that the harm suffered by the employee should be compensated.
The Court of Cassation rejected the employer's appeal, which argued that joining a CSP (Professional Security Contract) deprived the employee of the right to challenge the legality of the dismissal procedure. Indeed, according to the Court, joining a professional security contract constitutes a form of dismissal for economic reasons and does not deprive the employee of the right to compensation for the harm caused by the irregularity of the letter summoning them to the preliminary interview.
4. Reassignment: 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 subsequently dismissed brought an action before the labor court seeking damages for failure to comply with the dismissal procedure.
The Court of Appeal held that the employee had refused two offers of reassignment without consulting the employee representatives and dismissed his claims.
The Court of Cassation overturned the lower court's decision on the grounds that the opinion of the employee representatives regarding the employee's reassignment must be obtained after the employee's unfitness for work resulting from a workplace accident or occupational disease has been established, and before the employee is offered a suitable reassignment position.
5. Wearing religious symbols in the workplace
Soc. 9 April 2015 (No. 13-19.855):
The Social Chamber refers the following question to the Court of Justice of the European Union:
" Should the provisions of Article 4(1) of Council Directive 78/2000/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation be interpreted as meaning that the wish of a client of an IT consulting firm to no longer have the IT services of that firm provided by an employee, a research engineer, wearing an Islamic headscarf, constitutes a genuine and determining occupational requirement, by reason of the nature of a professional activity or the conditions under which it is carried out? "
6. Age discrimination – Intergenerational pact
Soc. March 17, 2015 (No. 13-27.142) FS-PB:
Ski instructors appealed to the High Court seeking the annulment of the intergenerational pact, adopted by the French National Ski Instructors' Union, which regulated the reduction of instructors' working hours starting at age 62. The Court of Appeal held that the integration of newly qualified young ski instructors was a legitimate objective and dismissed the instructors' claim.
The Court of Cassation overturned the Court of Appeal's reasoning. It held that the Court of Appeal should have determined, firstly, that the difference in treatment based on age was objectively and reasonably justified by a legitimate objective of general interest and, secondly, that the means used to achieve this objective were appropriate and necessary.
7. Waiver of the non-competition clause
Soc. March 11, 2015 (No. 13-22.257) FS-PB:
In this case, an employment contract contained a non-compete clause for a period of one year from the date of termination. Renewable once, the clause specified that the company could lift or reduce the non-compete restriction by registered letter with acknowledgment of receipt, and at the latest within eight days of notification of termination of the employment contract.
The employer released the employee from his non-compete obligation by letter dated April 7, 2010, and subsequently dismissed him on June 28, 2010. The employee then brought the matter before the labor court.
The Court of Appeal held that the employee's argument that the employer could not waive the non-compete clause before notification of termination of the employment contract was incorrect, since the contract stipulated that the employer could waive the benefit of the non-compete clause only if this waiver was notified to the employee within eight days of notification of termination.
The Court of Cassation overturned the Court of Appeal's decision. In support of its ruling, the Court first specified that " the non-compete clause, the validity of which is contingent upon the existence of financial compensation, is stipulated in the interest of each party to the employment contract." The Court then concluded that "the employer cannot, unless otherwise stipulated, unilaterally waive this clause during the term of the contract ."
8. Terms and conditions for termination of the employment contract
Soc. March 25, 2015 (No. 14-10.149) FS-PB:
An employee and her employer signed a termination agreement three days after the employee returned from maternity leave. The employee then filed a claim with the labor court regarding both the performance and the termination of the contract.
According to the employee, the termination, concluded during the protected period following maternity leave, was null and void. The Court of Cassation upheld the Court of Appeal's decision rejecting this claim and reiterated that, except in cases of fraud or vitiated consent, which were not alleged in this case, a negotiated termination agreement can be validly concluded during the periods of suspension of the employment contract to which the employee is entitled under her maternity leave, as well as during the four weeks following the expiration of these periods.
The Court of Cassation, however, partially overturned the Court of Appeal's decision insofar as it rejected the claim for damages based on the existence of wage discrimination. Indeed, the Court of Cassation specifies that the Court of Appeal should have carried out a comparative analysis of the situation, functions and responsibilities of the person concerned with those of other sales engineers and not simply noted that the employee worked in a different geographical area than another sales engineer to consider that the two employees were not in comparable situations and reject the employee's claim.
9. Negotiated termination and the statute of limitations for disciplinary proceedings
Soc. March 3, 2015 (No. 13-23.348) FP-PB:
An employer and an employee signed a termination agreement on October 28, 2010, but the employee withdrew it on November 5. On November 16, the employee was summoned to a pre-dismissal meeting, and the dismissal was notified to him on December 6 for unauthorized absences. The Court of Appeal noted that disciplinary proceedings were initiated late and ruled that the dismissal was without just cause.
The employer appealed, arguing in particular that the statute of limitations for initiating disciplinary proceedings, which can lead to dismissal, is interrupted by any act unequivocally demonstrating the employer's intention to take action regarding the consequences of the misconduct.
The Court of Cassation dismissed the appeal because a negotiated termination agreement does not interrupt the two-month statute of limitations stipulated in Article L.1332-4 of the French Labor Code.
10. Termination and exercise of the employer's disciplinary power
Soc. March 3, 2015 (No. 13-15.551) FP-PB:
In this case, an employee summoned for a preliminary meeting regarding possible dismissal on June 7, 2010, signed a termination agreement on the same day and then exercised his right of withdrawal by letter dated June 16, 2010. Summoned by letter dated June 21, 2010, to a new preliminary meeting regarding possible dismissal scheduled for June 28, he was dismissed for serious misconduct by letter dated July 1, 2010. Having
been unsuccessful in his appeal to the Court of Appeal in his claim that the dismissal was not justified by serious misconduct, the employee appealed to the Court of Cassation. In support of this appeal, the employee argues that the employer, who chooses, on the date he became fully and accurately aware of the facts attributable to the employee, to offer him a negotiated termination of his employment contract, thereby waives the right to initiate disciplinary proceedings against him for those same facts.
The Court of Cassation upheld the appeal court's decision, ruling that the signing of a negotiated termination agreement by the parties to the employment contract, after the initiation of disciplinary dismissal proceedings, does not constitute a waiver by the employer of his disciplinary authority. Consequently, if the employee exercises his right to withdraw from the negotiated termination agreement, the employer is entitled to resume the disciplinary proceedings by summoning the employee to a new preliminary interview in accordance with the provisions of Article L. 1332-4 of the French Labor Code and to impose a sanction, including dismissal for serious misconduct.
11. Effect of concluding a settlement agreement between the signing and the approval of the termination
Soc. March 25, 2015 (No. 13-23.368) FS-PB:
The Social Chamber recalls that an employee and an employer who have signed a termination agreement cannot validly conclude a settlement, on the one hand, unless it occurs after the approval of the negotiated termination by the administrative authority, and on the other hand, unless 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.
12. Transaction: Tax regime
CE 1 April 2015 (No. 365253):
In exchange for withdrawing proceedings before the labor court following a resignation, an employee received compensation as part of a settlement agreement with his employer.
The tax authorities included this compensation in taxable income, and the Court of Appeal rejected the employee's request for relief from the additional income tax assessment.
The Council of State overturned the Court of Appeal's decision on the grounds that it should have determined whether the employee had established that the disputed settlement payment could be considered equivalent to compensation following a dismissal without just cause, in order to determine whether he was eligible for the income tax exemption provided for in Article 80 duodecies of the General Tax Code.
13. Calculation of the AGS guarantee: ceiling on claims
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 the employee's claim arose and at the latest on the date of the judgment approving the plan or ordering the judicial liquidation. When wage claims, due to the different dates on which they arose, are subject to different ceilings, these ceilings apply to them respectively, up to the overall limit of the highest ceiling then applicable.
14. Wages due in the event of dismissal without just cause
Soc. March 31, 2015 (No. 13-27.196) FS-PB:
In this case, an employee dismissed for serious misconduct was invited by the notification letter to refer the matter to the disciplinary board established by the collective bargaining agreement.
The Court of Appeal ruled the dismissal to be without just cause. Accordingly, it penalized the employer for failing to comply with the contractual procedure and ordered the employer to pay wages from the date of notification of dismissal until the date of the board's opinion. Since
no wages were owed by the employer for the period following notification of dismissal, which results in the immediate termination of the contract, the Court of Cassation partially overturned the Court of Appeal's decision.
15. Dismissal – evidence
Soc. March 31, 2015 (No. 13-24.410) FS-PB:
In a dispute between an employee dismissed for serious misconduct and his employer, the Court of Appeal dismissed the employer's counterclaim seeking to compel the employee, under penalty of a fine, to destroy a copy of a hard drive, on the grounds that the evidence produced by the employer did not establish a risk of the documents being used for commercial purposes.
The Court of Cassation overturned the judgment. According to the Court, by ruling in this way, without determining whether the employee had established that the documents in question were strictly necessary for exercising his rights of defense in the dispute with his employer concerning his dismissal, the Court of Appeal deprived its decision of a legal basis.
16. Dismissal of a protected employee
CE March 27, 2015 (No. 371174):
In this case, a protected employee used 105 hours of union leave to work for another company.
The Administrative Court of Appeal based its decision on the fact that these actions were not carried out in the course of the employee's employment contract and ruled that the employee's dismissal could not be justified.
According to the Council of State, an employee's action outside the scope of their employment contract cannot justify dismissal for misconduct, unless it demonstrates a breach of an obligation arising from that contract. A protected employee's use of union leave to engage in other professional activity violates the duty of loyalty to their employer, which stems from their employment contract. Consequently, the Council of State overturned the Court of Appeal's decision.
17. Fundamental freedoms of the employee
Soc. March 31, 2015 (No. 13-25.436) FS-PB:
A skilled road worker employed by a highway concession company was dismissed for serious misconduct, specifically for being found intoxicated at his workplace. He sought to have his dismissal declared null and void. To this end, the employee argued that a fundamental freedom had been violated by the use of a breathalyzer test outside the workplace, in disregard of the procedures prescribed by the company's internal regulations.
The Court, on the contrary, held that a breathalyzer test to determine an employee's intoxication at work did not constitute an infringement of a fundamental freedom, since, given the nature of the work assigned to the employee, such intoxication was likely to endanger people or property, and the procedures for this test, as stipulated in the internal regulations, allowed for its contestation, regardless of whether it was carried out, for technical reasons, outside the company premises.
