1. Validity of the designation of a mandatory supplementary health insurance provider
2. Reminder concerning the exercise of the right to strike
3. Unenforceability of an amendment to the internal regulations
4. Entitlement of the Health, Safety and Working Conditions Committee (CHSCT) to receive compensation for damages resulting from the infringement of its prerogatives
5. Social security contributions: inclusion of compensation for violation of an employee's protected status
6. Waiver of the non-competition clause
7. Employer's obligation of result regarding the protection of the health and safety of the employee
8. Professional nature of SMS messages sent or received on the phone provided by the employer
1. Designation of a mandatory supplementary health insurance provider
An amendment, extended by decree, to the extended national collective agreement for craft businesses in the bakery and pastry-making sector provided for the implementation of a mandatory supplementary health insurance reimbursement scheme for employees falling within the scope of this agreement. To this end, Ag2r prévoyance was designated under Article 13 of this amendment to manage this scheme, and Article 14 required all companies falling within the scope of the amendment to subscribe to the guarantees it provides from January 1, 2007. The two following judgments concern the situation of craftsmen who refused to join the conventionally designated scheme, who then saw the designated body take legal action, on the grounds that joining this scheme was mandatory, in order to obtain back payments of contributions.
- Soc. February 11, 2015 (No. 14-13.538) FS-PB:
To reject the insurance company's claim, the Court of Appeal relied, firstly, on the Constitutional Council's decision of June 13, 2013, which declared Article L. 912-1 of the Social Security Code unconstitutional and therefore invalidated the disputed amendment, and secondly, on the absence of a contract in force at that time between the insurance company and the company.
The Court of Cassation overturned this ruling. Indeed, the Court held that the Constitutional Council, in its decision of June 13, 2013, stated that the declaration of unconstitutionality of Article L. 912-1 of the Social Security Code did not apply to contracts entered into on that basis, which were in force at the time the decision was published and which bound companies to those governed by the Insurance Code, to institutions falling under Title III of the Social Security Code, and to mutual insurance companies governed by the Mutual Insurance Code. According to the Court of Cassation, the contracts in progress are the acts having the character of collective agreements or conventions which have designated insurance bodies for the purposes of the operation of the pooling mechanisms which the social partners have intended to put in place, or even the contractual acts signed by them with the insurance bodies in order to bind the latter and to specify the stipulations of the collective agreement of the sector and its modalities of effective implementation.
- Soc. February 11, 2015 (No. 14-11.409) FS-PB:
In this case, the baker sought to have the clause designating the insurance provider in the collective agreement declared null and void due to the lack of prior competitive bidding.
The Court of Cassation overturned the Court of Appeal's decision, which had made the validity of the designation clause contingent upon prior competitive bidding by the social partners involving several economic operators. In support of its decision, the Court of Cassation specified that the Court of Justice of the European Union (CJEU) had ruled, in a judgment of March 3, 2011 (Ag2r prévoyance v. Beaudout, C-437/09), that mandatory affiliation to a supplementary health insurance scheme for all companies in the sector concerned with a single provider, without the possibility of exemption, was compliant with Article 101 of the Treaty on the Functioning of the European Union (TFEU). In the same ruling, it held that, insofar as the activity of managing a supplementary healthcare reimbursement scheme such as the one in question could be classified as economic, Articles 102 and 106 of the TFEU did not preclude, in circumstances such as those of the case, the public authorities from granting a pension fund the exclusive right to manage that scheme, without any possibility for companies in the sector concerned to be exempted from joining said scheme. Finally, according to the Court of Cassation, it follows from the provisions of Articles 102 and 106 of the Treaty that they do not impose on the social partners any specific procedures for appointing the manager of a mandatory pension scheme.
2. Infringement of the right to strike
. February 11, 2015 (No. 13-14.607) FS-PB:
Three days after the date announced in a strike notice, an employer, noting that the strike had not begun, posted a notice indicating that the notice was no longer valid and that no work stoppage could take place during the notice period. The union, which had issued the strike notice, then filed a claim with the High Court seeking an order compelling the employer to remove the notice and to pay damages. The Court of Appeal ruled that the notice infringed upon the right to strike and ordered its removal under penalty of a fine.
The Court of Cassation upheld the Court of Appeal's decision and reiterated that " while, in the public sector, a strike must be preceded by notice given by a representative union, and while this notice, to be valid, must specify the start and end times of the work stoppage, employees, who alone hold the right to strike, are not obligated to cease work for the entire duration indicated in the notice ."
3. Amendment to Company Rules,
Soc. 11 February 2015 (No. 13-16.457) FS-PB:
A company's internal regulations stipulated that work clothes should not be worn outside the workplace and working hours. The employer subsequently introduced an exception allowing employees to travel to and from the workplace wearing their work clothes, without submitting this amendment to the Health, Safety and Working Conditions Committee (CHSCT). The Court of Appeal ruled that this amendment was not enforceable against the employee.
The Court of Cassation upheld the Court of Appeal's decision and clarified that, according to the provisions of Article L. 1321-4 of the French Labor Code, the clauses of the company rules can only be amended after the draft has been submitted to the Health, Safety and Working Conditions Committee (CHSCT) for its opinion on matters within its jurisdiction.
4. CHSCT's Entitlement to Claim Damages
(Soc. 3 March 2015 (No. 13-26.258) FS-PB):
The Court of Cassation clarified here that the CHSCT, " whose mission is to contribute to the protection of the health and safety of the company's employees as well as to the improvement of their working conditions, and which is endowed with legal personality for this purpose, is entitled to sue the employer for compensation for damages caused by the latter's infringement of its prerogatives ." The question of the possibility of being awarded damages arose since the CHSCT lacks its own budget.
5. Compensation for violation of an employee's protected status: subject to social security contributions
. 2nd Civil Chamber, February 12, 2015 (No. 14-10.886) F-PB:
Compensation for violation of protected status, which is not among the allowances exempt from personal income tax as exhaustively listed in Article 80 duodecies of the General Tax Code in its applicable version, is subject to social security and unemployment insurance contributions.
6. Waiver of the non-compete clause
. Social Chamber, March 3, 2015 (No. 13-20.549) FP-PB:
The Court of Cassation clarifies two points in this ruling. First, it states that " when the employment contract has been terminated by the exercise by one or the other party of their right of unilateral termination, the subsequent signing of a negotiated termination agreement constitutes a joint waiver of the previously concluded termination ."
The Court then adds that “ when the employment contract stipulates that the employer may release the employee from the non-compete clause either at any time during the performance of the contract or upon its termination, at the latest in the letter notifying the dismissal or on the very day of receipt of the resignation, it is, in the case of a negotiated termination, the termination date set by the termination agreement that determines the employer's compliance with the contractual notice period .”
The Court therefore considers that, in this case, by signing a negotiated termination agreement, the parties mutually waived the dismissal previously notified by the employer. Consequently, the employer was legally entitled to waive the non-compete clause two days before the scheduled termination date of the contractual relationship.
7. Employer's obligation of result regarding the protection of the employee's health and safety.
Soc. March 11, 2015 (No. 13-18.603) FS-PB:
In this case, an employee who was the victim of psychological and sexual harassment acknowledged the termination of her employment contract and brought the matter before the labor court. The Court of Appeal held that the harassment had occurred but dismissed the employee's claim on the grounds that the employer, who had dismissed the perpetrator of the harassment, had taken the necessary measures to protect the employee and therefore had not failed in its duty of care.
The Court of Cassation overturned the judgment, ruling that " an employer, bound by a strict liability obligation regarding the health and safety of workers, fails in this obligation when an employee is the victim of psychological or sexual harassment in the workplace perpetrated by another employee, even if the employer has taken measures to stop such harassment ." It was therefore incumbent upon the court, having found that the employee was a victim of harassment, to assess whether this misconduct had prevented the continuation of the employment contract.
8. Professional nature of text messages sent or received on a company-provided phone
. Com. February 10, 2015 (No. 13-14.779) FS-PB:
Accusing a competitor of disrupting its operations by poaching a large number of its employees, a company was authorized by court order to conduct an investigation at the competitor's headquarters and on the communication tools made available to its former employees. The Court of Appeal rejected the competitor's request to withdraw this authorization.
The competitor then appealed to the Court of Cassation, arguing that the production, as evidence, of text messages sent or received by employees using a mobile phone provided for work purposes was unfair.
The Court of Cassation rejects the appeal and specifies that SMS messages sent or received by the employee using the phone provided by the employer for work purposes are presumed to be professional in nature, so that the employer has the right to consult them without the employee being present, unless they are identified as personal.
