1. Invalidation of daily work packages:
- National collective agreement for the building industry
- Collective agreement for the food retail and wholesale trade
2. Equal treatment:
- Difference in benefits between professional categories
- Within the same professional category
3. Obligation to establish a Health, Safety and Working Conditions Committee (CHSCT)
4. Effect of the employer's cessation of activity on the non-compete clause
5. Procedures for waiving the non-compete clause
6. Employer's obligation to provide work and performance targets
1. Invalidations of day passes
- National collective agreement for the building industry
Soc. December 17, 2014 (No. 13-23.230) FS-PB:
The Court of Cassation upheld the Court of Appeal's decision invalidating the system of using a fixed-day work agreement as provided for in the national collective bargaining agreement for the building industry (IDCC 1596).
Indeed, the national professional agreement, which only stipulates that the employment contract must allow employees concerned some flexibility in organizing part of their working time, is insufficient to ensure the safety and health of employees subject to the fixed-day work agreement.
Furthermore, the Court specified that the implementation procedures for the fixed-day work agreement cannot be established by an internal memo.
- Collective agreement for the food retail and wholesale trade
Soc. February 4, 2015 (No. 13-20.891) FS-PB:
The provisions of the collective bargaining agreement for the retail and wholesale food trade (IDCC 2216), concerning the annual work schedule based on days worked, stipulate, with regard to monitoring the workload and working hours of the employee concerned, an annual meeting with their line manager. The provisions of the company agreement provide for the organization of the employees' activities over five days, so that they can effectively exercise their right to weekly rest, and for the creation of a document summarizing their attendance over the year.
According to the Court of Cassation, these provisions are not sufficient to guarantee that the workload and working hours remain reasonable and ensure a proper distribution of the employee's work over time. These provisions do not contribute to ensuring the protection of the employee's safety and health. Consequently, the annual work schedule based on days worked is null and void.
2. Equal treatment
- Difference in benefits between professional categories
Soc. 27 January 2015 (No. 13-22.179) FS-PBRI:
The Court narrowed the scope of its case law (Soc. 8 June 2011 (No. 10-14.725) FS-PBRI and (No. 10-11.933) FS-PBRI), according to which the principle of equal treatment precludes differences in treatment between professional categories, unless these differences are based on objective reasons.
The Court's position is now as follows: "Differences in treatment between professional categories established by collective agreements or contracts, negotiated and signed by representative trade unions, entrusted with defending the rights and interests of employees and whose legitimacy is directly conferred upon them by the employees through their vote, are presumed to be justified, such that the burden of proof lies with the party contesting them to demonstrate that they are unrelated to any professional considerations .
- Equal treatment within the same professional category
Soc. 27 January 2015 (No. 13-17.622) FS-PB:
In this case, a mutual insurance company employed employees in the same category but with different legal statuses. These plans were subsequently harmonized, but some employees brought their case before the labor court seeking damages for the harm resulting from the difference in treatment from their hiring date until the date of plan harmonization.
The Court of Cassation overturned the Court of Appeal's decision dismissing their claim. In support of its decision, the Court of Cassation specifies, on the one hand, that " for the granting of a particular benefit, a difference in legal status between employees placed in a comparable situation with regard to said benefit is not sufficient, in itself, to exclude the application of the principle of equal treatment, on the other hand, that it is up to the employer to demonstrate that the difference in treatment between employees placed in the same situation with regard to the benefit in question is based on objective reasons, the reality and relevance of which must be checked by the judge ."
3. Obligation to Establish a Health, Safety and Working Conditions
Committee (CHSCT) - French Supreme Court (Cour de cassation) - December 17, 2014 (No. 14-80.532) F-PBI:
The French Supreme Court reiterates that all employees of a company with at least fifty employees must be covered by a CHSCT.
Consequently, the decision of a company employing approximately one hundred and forty employees across seven sites to establish a CHSCT at only one of these sites, the only one with more than fifty employees, is unlawful.
4. Effect of the Employer's Cessation of Business on the Non-Compete Clause
(French Supreme Court, Social Chamber, January 21, 2015, No. 13-26.374, FS-PB):
In this case, the employment contract contained a three-year non-compete clause, in return for which the employee received compensation after the effective termination of her contract. The contract was terminated on April 20, 2011, and the employee requested payment of the financial compensation for the non-compete obligation, calculated over three years.
The Court of Appeal noted that the employer had been subject to a court-ordered liquidation on September 27, 2011, and dismissed the employee's claim on the grounds that she was no longer bound by any non-compete obligation with respect to a company that no longer existed.
The Social Chamber of the Court of Cassation overturned the judgment. Indeed, according to the Court of Cassation, since the non-competition clause takes effect from the termination of the employment contract, the subsequent cessation of activity of the employer does not have the effect of releasing the employee from his non-competition obligation.
5. Terms for Waiving the Non-Compete Clause
(French Supreme Court, Social Chamber, January 21, 2015, No. 13-24.471, FS-PB):
In the event of termination of the employment contract with a waiver of the notice period, the date from which the employee is bound by the non-compete obligation, the date on which the financial compensation for the non-compete clause becomes due, and the date from which the reference period for calculating this compensation must be determined are all dates of the employee's actual departure from the company.
Therefore, an employer who waives the employee's notice period must, if they intend to waive the non-compete clause, do so no later than the employee's actual departure date from the company, notwithstanding any contrary stipulations or provisions.
6. Umbrella company services: employer's obligation to provide work and performance-based clause
. French Supreme Court (Cour de cassation) February 4, 2015 (No. 13-25.627) FS-PB:
An employee, dismissed for failing to comply with the performance-based clause in his employment contract, which required him to complete one or more new assignments equivalent to five days before the end of his current assignment, brought a claim before the labor court.
The employer appealed to the Court of Cassation against the judgment ordering the employer to pay the employee sums for back pay, accrued vacation pay, severance pay, and compensation for unfair dismissal.
The Court of Cassation dismissed the appeal on the grounds that the conclusion of an employment contract entails an obligation for the employer to provide work.
