Newsletter No. 110 – February 2018

Pursuant to the provisions of article L.1233-25 of the Labor code, when at least ten employees have refused an amendment of their employment contract for economic reasons, the employer who plans on dismissing them must implement an employment safeguard scheme (PSE).  But he may also prefer not to amend certain contracts and head towards a project of collective redundancy concerning less than ten employees.  In such a case, the French Supreme Court (Cour de cassation) considers that the employer is then not bound to set up a PSE (Cass. Soc., 24 January 2018, No. 16-22.940).

According to the provisions of article L.1233-57-3 of the Labor code, the Direccte may validly approve the unilateral document setting the contents of the PSE only after ensuring that the measures are sufficient with regard to the group’s means.  The High jurisdiction has further clarified the definition to be used regarding this notion of group.  It is the group formed by the companies placed under the control of one same dominant company in the meaning of the provisions of the Commercial code (CE, 7 February 2018, No. 397900 et 406905).

Any PSE must enunciate the professional categories concerned by redundancies.   In 2016, the French Administrative Supreme Court (Conseil d’Etat) had already indicated what was to be meant by professional category (CE, 30 May 2016, No. 387798). In five decisions of 7 February 2018, two principles seem to emerge.  On the one hand, the setting of the professional categories by majority agreement is quite free, the only reservation being the absence of discrimination.  On the other hand, when the PSE is the object of a unilateral document drawn up by the employer, the administration carries out a more thorough verification which can lead it to refuse the approval in two cases:

– when the categories have been determined using a wrong global breakdown method, “on the basis of elements such as the organization of the company or the concerned people’s length of service, which are irrelevant to those which allow to group together, given professional experience gains, employees by duties of a same nature presupposing a common professional training”,

– when the breakdown used serves the purpose of aiming at certain employees particularly (CE, 7 February 2018, Nos. 407718, 399838, 403989, 403001 and 409978).

The Cour de cassation so far defined the “gross total payroll” used as a basis for the computation of the operating grant and of the contribution for social and cultural activities (ASC) to be paid to the works council, in reference to account 641 of the general chart of accounts.   This computation basis was under debate and was the source of great litigation –  account 641 also including sums which did not have, strictly speaking, the nature of a salary.  The Supreme Court went back on its judgement and now considers that the notion of total payroll “means the gross payroll comprised of all the earnings and remunerations that are subject to social security contributions according to article L .242-1 of the Social security code” (Cass. Soc., 7 February 2018, No. 16-16.086 and 16-24.231).

The Labor code allows the employer to conclude, with the same employee, successive CDDs for the replacement of an absent employee or whose contract is being suspended.  This principle is nonetheless limited by the prohibition to durably fill, by means of a CDD, a position related to the normal and permanent activity of the company, at the risk of seeing the work relationship being converted into a CDI.  Until now, case law was strict on this matter.  When an employer used multiple replacement CDDs with the same employee over a same period, conversion occurred almost automatically.  In its decision of 14 February 2018, the Cour de cassation follows that of the CJEU by admitting that the use of replacement CDDs in a recurrent, or even permanent, way does no longer systematically lead the judge to convert these contracts into a CDI (Cass. Soc., 14 February 2018, No. 16-17.966).

When a user company has recourse to a temporary employee with disregard for the provisions relating to the cases of recourse to temporary work and to the duration of the missions, the employee may request the conversion of his contract into a CDI with the user company.  Yet, in such a case, the Cour de cassation considers that the user company may implead the temporary work company (ETT), if it failed to observe the waiting periods between the missions, since this obligation is assumed by it according to article L.1251-36 of the Labor code.  The Cour de cassation thus sentences the ETT, based on its contractual liability, to pay 50% of the sentence imposed on the user company (Cass. Soc., 14 February 2018, No. 16-21.940).

The ECHR has just confirmed French case law regarding access by the employer to files stored by employees on their work computer.  The matter at hand deals with the case of an employer having consulted, in the absence of the employee, files not entitled “personal”, but stored on a hard disk renamed “D:/personal data” by the employee.  According to its case law, the Cour de cassation dismisses any violation of the right to privacy, judging that the name given to the hard disc cannot endow all of the data it contains with a personal nature.  Hearing the case, the Cour de Strasbourg validates the position adopted by the Supreme Court, thus endorsing the mechanism applied by French substantive law on this subject (CEDH, 22 February 2018, No. 588/13).