Newsletter No. 108 – December 2017

Breaking away from the case law established since 2014 (Cass. Soc. 15 January 2014, No. 12-25.402), the French Supreme Court (Cour de cassation) now considers that “the difference in treatment between employees whose employment contracts have been transferred pursuant to an employment guarantee conventionally instituted […] and the entrant employer’s employees, which results from the obligation to which  the latter is bound to maintain to the benefit of the transferred employees the rights that were acknowledged to them by their former employer on the day of the transfer, is not unrelated to any consideration of a professional nature and is thus justified with respect to the principle of equal treatment”.  Consequently, contrary to previous case law, the differences in treatment between transferred employees and the employees of the host company are now justified (Cass. Soc. 30 November 2017, No. 16-20.532).

An employee, summoned to a meeting preliminary to a potential disciplinary dismissal fixed on 18 February 2014, considered that his employer had not notified him his dismissal within the one-month period provided for by the provisions of article L. 1332-2 of the Labor code.  Indeed, the employer had notified him this sanction on 4 March 2014 by registered letter with acknowledgement of receipt, but the letter had been returned to him by the postal service with the indication “lack of access or address”.  The trial judges followed the employee’s argumentation and ruled that the dismissal was abusive, while the address indicated on the mail was correct.  The High jurisdiction quashed the decision of the court of appeal because “it resulted from its observations that the employer had notified the dismissal to the exact address of the employee’s domicile within the one-month period” (Cass. Soc., 30 November 2017, No. 16-22.569).

Employees, hired after the establishment of a salary scale by collective agreement, referred a request to the labor court for the payment of a back pay because they were receiving a smaller remuneration than their colleagues hired prior to the conclusion of the collective agreement.  For the trial judges, the fact that the employer may not unilaterally modify the employee’s remuneration was not, on its own, likely to legitimize a disparity in treatment among employees performing the same work.  The High Jurisdiction quashes the decision of the court of appeal.  According to it, “unless otherwise provided by law, a collective agreement cannot modify an employee’s employment contract, only the favorable provisions of this agreement may substitute for the contract; […] it results therefrom that this rule constitutes a relevant objective element likely to justify the difference in treatment between the employees hired before the entering into effect of a collective agreement and those hired afterwards, and ensuing from the maintaining, for the first, of the provisions of their employment contracts” (Cass. Soc., 7 December 2017, No. 16-15.109).

Article L. 1226-4 § 3 of the Labor code, applicable to non-professional inaptitude, provides that “in case of a dismissal, the notice period is not completed and the employment contract is terminated on the date the dismissal is notified. The notice period is however taken into account for the calculation of the compensation referred to at article L. 1234-9.  By derogation from article L. 1234-5, non-completion of the notice period does not give rise to a compensation”.  According to the Cour de cassation, “the compensation in lieu of notice is due to the employee who is inapt for the duties of his position, whose dismissal is without real and serious cause due to the breach by the employer of his obligation of redeployment” (Cass. Soc. 7 December 2017, No. 16-22.276).

 

Article L. 1237-14 § 3 of the Labor code provides that “any dispute concerning the agreement, the approval or refusal of approval is a matter for the labor court, to the exception of any other litigation or administrative action.  A court action must be initiated, failing which it shall be inadmissible, prior to the expiry of a 12 months’ period as from the date of approval of the agreement”.  For the first time, the Cour de cassation specifies that this limitation period also starts running in case of an implicit approval of the termination agreement (Cass. Soc. 6 December 2017, No. 16-10.220).

This decree adds articles R. 1232-13 and R. 1233-2-2 to the Labor code, these articles providind that “within fifteen days of the notice of dismissal, the employee may, by registered letter with acknowledgement of receipt or delivery by hand with a receipt, request from the employer details on the reasons set out in the letter of dismissal.

The employer has fifteen days from the reception of the employee’s request to provide details if he wishes to.  He provides these details to the employee by registered letter with acknowledgement of receipt or delivery by hand with a receipt.  Within fifteen days following the notice of dismissal and in the same form, the employer may, on his initiative, provide details on the reasons for the dismissal” (D. No. 2017-1702 dated 15 December 2017, JO dated 17 December).

A decree specifies that in case two councilors do not reach a unanimous decision at the conciliation and orientation board of the labor court, the matter shall be directly referred to the decision-making board.  Regarding the contestation of the opinions of the occupational doctor, the case shall be referred to the summary proceedings formation of the labor court, within fifteen days of their being notified (D. No. 2017-1698 dated 15 December 2017, JO dated 17 December).

This text aims to “complete and create greater consistency among the provisions adopted pursuant to the law No. 2017-1340 dated 15 September 2017 authorizing to take measures by orders for the reinforcement of the social dialogue” (Order No. 2017-1718 dated 20 December 2017, JO dated 21 December).