Newsletter No. 111 – March 2018

Following an offense committed while driving the company car, a technician working with customers had his driver’s license suspended.  Dismissed on this ground, the employee referred his case to the labor court notably to claim compensation in lieu of notice, since according to him, only gross negligence could have deprived him thereof.  The French Supreme Court (Cour de cassation) does not share this view and admits that the driver’s license was necessary for the employee’s professional activity.  Thus, the latter, no longer having his driver’s license, was unable to perform his work, “including during the notice period”.  It concludes that the employer did not have to pay any compensation in lieu of notice to the employee (Cass. Soc., 28 February 2018, No. 17-11.334).

An employee requested the annulment of the mutually agreed termination of his employment contract on the ground that no termination form had been provided to him.  While the trial judges dismissed his requests, the High jurisdiction disapproves the appeal decision, considering that providing a copy of the termination agreement to the employee is necessary, on the one hand, so that each of the parties may request the approval of the agreement, and, on the other hand, to guarantee the employee’s free consent by allowing him to later knowingly exercise his right of withdrawal.  If this condition is not fulfilled, or if the employer gives a copy of the termination agreement to someone other than the employee, the mutually agreed termination shall be null (Cass. Soc., 7 March 2018, No. 17-10.963).

Article L. 1234-20 of the Labor code provides that if the employee has not disclosed the receipt relating to the account settlement within six months of its signing, the employer is released from any future claim regarding the sums that are specifically detailed therein.  Such disclosure may directly result from an action before the labor court about the sums referred to in the receipt.  In this case, the Cour de cassation explained that if a summons before the conciliation and orientation board of the labor court has the effects of a disclosure of the receipt relating to the account settlement, it is on the condition that the employer received it before the expiry of the six months’ disclosure period (Cass, Soc., 7 March 2018, No. 16-13.194).

The Constitutional court (Conseil constitutionnel) has ruled about the new article L. 2314-5 of the Labor code, resulting from the orders of 22 September 2017, which provides that, in companies having between 11 and 20 employees, the employer invites the trade unions to the negotiation of the agreement on the sole condition that at least one employee has stood as a candidate in the elections, within 30 days as from the information of these elections being held.  The Constitutional court validates these provisions, considering that the legislator meant to avoid that, in the smallest companies, the employer be required to start the negotiation of a pre-election agreement which, in the absence of a candidate, could become purposeless.  The Constitutional court adds that so long as “these provisions do not limit the possibility for the employees to declare their candidacy, which is not subject to the existence of such an agreement”, the text does not disregard the principle of the workers’ participation (Cons. Const., DC No. 2018-761 of 21 March 2018).

An employee, protected due to his candidacy in the CHSCT elections, was called to a pre-dismissal meeting, two days after expiry of his protective status.  The employer considered that he was entitled to dismiss the employee for doings committed in whole or part during the protection period.  The Cour de cassation approves of the trial judges having determined the nullity of the dismissal, after noting that “the employee had been called to a pre-dismissal meeting, two days after the expiry of the protection period and for doings which occurred only during the latter”, thereby characterizing “a misuse of the protection procedure” (Cass. Soc., 28 February 2018, No. 16-19.562).

The non-compete clause included in an employment contract is often combined with a provision allowing the employer to renounce the application of the clause, within a certain period, and thus to be released from the payment of a financial consideration.  In this case, an employee had resigned on 13 January 2011.  Subjected to a three months’ notice expiring on 13 April 2011, she had stopped working after 28 February 2011, on her own initiative and without having obtained the employer’s consent.  Yet, the starting point of the renunciation period contractually provided for was the date of the effective termination of the working relationship, namely on the notice period end date.  The Cour de cassation considered that the renunciation period ran on the normal date of expiry of the notice period, notwithstanding the fact that the employee had decided on her own initiative to stop working during the notice period before its expiry (Cass. Soc., 21 March 2018, No.  16-21.021).

In this case, an employee had been dismissed for non-professional inaptitude with an impossibility of redeployment.  While article L. 1226-4 of the Labor code does not provide for any notice period in this situation, the dismissal letter, on the other hand, granted him a two months’ notice period with an exemption from remunerated activity.  According to the High jurisdiction, the employee having presented his candidacy, “although being exempted from performing his notice period work, remained part of the company workforce at the time of the litigious professional elections”, so that the court of first instance justified its decision which dismissed the union’s request to cancel the elections of the staff representatives and of the works council members (Cass. Soc., 14 March 2018, No. 17-14.028).