Social law – Case law (Nov. Dec. 2014)

Summary

1. Overtime trigger threshold
2. Collective agreements for the banking and notary sectors: fixed-day contracts
3. An employee's qualities cannot justify a difference in treatment during the hiring process
4. The dispute concerning severance pay
5. Combining earnings and unemployment benefits
6. Respecting the notice period cannot lead to termination of the contract beyond the trial period

1. Overtime trigger threshold

Soc. November 13, 2014 (n°13-10.721) FS-P+B:

An extended collective bargaining agreement or a company or establishment agreement may stipulate that the weekly working hours may vary over all or part of the year, provided that, over a one-year period, these hours do not exceed a maximum of 1,607 hours. The agreement may set a lower maximum.
In this case, the collective working hours adopted following a 1997 agreement provided for 32 hours and 30 minutes per week, totaling 1,470 hours. However, the agreement did not specify how hours worked beyond this schedule would be compensated.

According to the Court of Cassation,

"In the absence of a lower trigger threshold set by the collective agreement, only hours worked beyond 1607 hours constitute overtime.".

2. Collective agreements for the banking and notary sectors: fixed-day contracts

Soc. December 17, 2014 (n°13-22.890) FS-P+B :

The agreement on the organization and reduction of working time in the banking sector of May 29, 2001 stipulates that:

• The calculation of days and half-days worked is done on the basis of a self-declaration system;
• The organization of employees' work must be regularly monitored by management, who will pay particular attention to any potential workload overloads. In such cases, an analysis of the situation will be carried out, and where appropriate, all necessary measures will be taken to ensure compliance, in particular, with the minimum daily rest period stipulated in Article L. 220-1 of the French Labour Code and to avoid exceeding the number of days worked, within the limits set out in the last paragraph of Article L. 212-15-3III of said Code;
• The workload assigned and the resulting length of the working day must allow each employee to take the mandatory daily rest period referred to above;
• The minimum duration of this rest is legally set at 11 hours taken consecutively and, where applicable, according to the terms of Article 63 of the bank's collective agreement.

According to the social chamber, the provisions of the agreement meet the requirements relating to the right to health and rest.

Soc. November 13, 2014 (n°13-14.206) FSP+B:

In this ruling, the Court of Cassation considers that the fixed number of days as provided for by the collective agreement of the notary profession is null and void.

According to the Court, "the provisions of Article 8.4.2 of the national collective agreement for notaries of June 8, 2001, which merely stipulate, firstly, that the length of the working day must not exceed 10 hours except in cases of exceptional workload overload, and secondly, that each quarter, each employee concerned must complete a review of their working time, which they must provide to the employer and on which they must specify, where applicable, their usual arrival and departure times in order to assess the usual length of their working days and to remedy any excesses, are insufficient to guarantee that the length and workload remain reasonable and ensure a proper distribution of the employee's work over time, and therefore, to ensure the protection of the employee's safety and health, from which the Court of Appeal should have concluded that the fixed-day work agreement was null and void.".

3. An employee's qualities cannot justify a difference in treatment during the hiring process

Soc. November 5, 2014 (n°12-20.069) FSP+B:

In this case, an employee alleges before the labor court that his employer has failed to respect the principle of "equal pay for equal work" and is seeking payment of various sums. In support of his claim, the employee cites the fact that one of his colleagues, holding the same position within the same department, but with less seniority, had an almost identical job classification and received a salary 20% higher than his own.

The Court of Cassation considers that

"While professional qualities or differences in work quality may constitute objective reasons justifying a difference in treatment between two employees holding the same job, such elements, which may justify larger salary increases or faster progression in the salary scale for the more deserving employee, cannot justify a difference in treatment at the time of hiring, at a time when the employer has not yet been able to assess professional qualities.".

In the following paragraph, the Court adds

"that the sole difference in diplomas does not allow for a difference in remuneration between employees who perform the same functions, unless it is demonstrated by justifications, the reality and relevance of which it is up to the judge to verify, that the possession of a specific diploma attests to particular knowledge useful for the performance of the function held.".

4. Dispute concerning severance pay

Soc. December 10, 2014 (n°13-22.134) FS-P+B:

The employment contract of an employee of a sole proprietorship was taken over by a limited liability company (SARL). The employee's fifteen years of service were expressly retained. Subsequently, the employer and the employee signed a termination agreement under which the employee's length of service was reduced to nine months. The employee filed a claim with the labor court. The Court of Appeal dismissed her claims for severance pay and damages.

The Court of Cassation overturned the ruling on the grounds that:

“The absence of a request to annul the negotiated termination agreement, and consequently of any grounds for such a request, does not preclude an employee from demanding that the employer comply with the provisions of Article L. 1237-13 of the French Labor Code concerning the minimum amount of the specific severance pay for such a termination.” In this ruling, the Court of Cassation acknowledges that one of the parties to the termination agreement may subsequently contest the terms of the agreement without challenging its validity.

5. Combining earnings and unemployment benefits

Soc. November 19, 2014 (n°13-23.643) FSP+B+R:

In this case, the Court of Appeal noted that the employee had obtained a judgment against his employer for the payment of compensation in lieu of salary for the period between his unlawful dismissal and his reinstatement and decided that the payment of unemployment benefits paid by the insurance body for this period was undue.

The Court of Cassation upholds the decision of the Court of Appeal:

"but given that in its relations with the unemployment insurance body, an employee whose dismissal is null and void because it was pronounced without administrative authorization or despite a refusal of authorization, is not entitled to combine unemployment benefits with his remuneration or compensation equivalent to that.".

6. Compliance with the notice period cannot lead to termination of the contract beyond the probationary period

Soc. November 5, 2014 (n°13-18.114) FSP+B:

The employment contract of an employee hired on January 17, 2011, stipulated a three-month probationary period, renewable. By letter dated April 8, 2011, the employer informed the employee that the probationary period was unsuccessful and that, to comply with the fifteen-day notice period, the employment contract would be terminated effective April 22, six days after the end of the probationary period. The case was referred to the Court of Cassation as to whether the employment contract had been terminated during the probationary period.
According to the Court of Cassation, the employment relationship continued beyond the end of the probationary period. Consequently, the employee was entitled to damages for wrongful and unfair dismissal.