Newsletter No. 117 – September 2018
Private life: consequences of words used on social networks.
The French Supreme Court (Cour de cassation) has confirmed the unjustified nature of a dismissal for serious misconduct decided as against an employee who had denigrated her employer on her Facebook account. The litigious words, expressed within a closed group, accessible only to approved members and in a limited number (fourteen in this case), indeed pertain to a conversation of a private nature (Cass. Soc., 12 September 2018, No. 16-11.690).
Settlement agreement compensation: assessment by the administrative judge of the tax exemption.
To determine whether settlement agreement compensation paid following a dismissal is exempted from income tax, the judge must characterize it for the purpose of the case examination. They shall, for instance, seek whether the compensation is paid in relation to a dismissal which could be considered as unfair based on law and case law (CE, 5 July 2018, No. 401157).
Economic redundancy: the absence of training does not deprive a dismissal of a cause but creates a distinct loss.
According to the Cour de cassation, the failure for an employer to fulfil their obligation to adapt an employee to the evolution of his or her job and to his or her capacity to occupy a position with regard notably to the evolution of jobs, technology and organizations, causes the employee a specific loss and does not have the effect of depriving an economic redundancy from an actual and serious cause. This specific loss however justifies the granting of damages (Cass. Soc., 12 September 2018, No. 17-14.257).
Non-compete clause: fate upon intra-group mobility.
In a case concerning an employee having benefitted from intra-group mobility, the Cour de cassation had to decide on the fate of the non-compete clause inserted in the initial contract, and not reinserted in the contract established on the occasion of the mobility. The initial non-compete clause, if it does not apply to the second contract, does not disappear following mobility. On the contrary, its effects resume on the day the employment contract with the second employer is terminated, without it being possible to postpone or extend this period (Cass. Soc., 12 Sept. 2018, No. 17-10.853).
Company car: carpooling may justify a dismissal.
According to a Court of appeal, the fact for an employee to carpool in exchange for money using his or her company car and without his or her employer knowing, constitutes misconduct justifying a dismissal. Indeed, the employee exposes his or her employer to a risk, given the absence of insurance coverage for such an activity (CA Rennes, 31 August 2018, No. 16/05660).
<br /> Intercompany health services: clarifications on the calculation method of the contribution.
The Cour de cassation provides a very detailed description of the calculation method which must be used by the occupational health services which are common to several companies, to determine the amount of the contribution payable by employers. Having for the first time to decide on the calculation method of these contributions, the Cour de cassation affirms, as the French Administrative Supreme Court (Conseil d’Etat) has before it (CE, 30 June 2014, No. 365071), that a calculation must be made consisting in determining an amount per full time equivalent employee which shall then be applied to all company staff (Cass. Soc., 19 September 2018, No. 17-16.219).
Individual freedoms: sanctioning of biometric checks conducted without prior authorization.
The French data protection authority (CNIL – Commission nationale de l’informatique et des libertés) has just imposed a 10,000 Euros financial sanction on a company which had put in place, without prior authorization, biometric checking in measures (by fingerprint collecting) in order to check the employees’ working hours (Decision SAN-2018-009 of 6 September 2018).
Training: promulgation of the “Professional future” law.
Validated by the Constitutional Council (Conseil Constitutionnel) (decision No. 2018-769 of 4 September 2018), this law reforms the Training Personal Account (fed in Euros and no longer in hours), training (creation of a new regulating body: France compétences), and apprenticeship (now possible up to the age of 30, with an increase of the apprentices’ working hours). It also extends unemployment rights to resigning employees who have a project validated by a joint committee and also to independent workers. It reinforces the provisions relating to men/women equality and facilitates employment access for people with disabilities. Finally, this law reforms the provisions relating to temporary posting by simplifying, subject to certain conditions, the administrative obligations and by reinforcing control powers of the administration (L No. 2018-771 of 5 September 2018, Official Journal of 6 September).
Social security litigation: clarifications on the location and jurisdiction of the courts of first instance and of the courts of appeal.
This decree follows the reform of social security litigation (law No. 2016-1547 of 18 November 2016 about the modernization of the XXIst century justice) providing for the removal of the courts handling social matters and of the courts in charge of disability-related disputes for the benefit of the first instance court, within which a social division shall be developed. As from 1st January 2019, only certain first instance courts and Courts of appeal, designated in the decree, shall have jurisdiction in disputes pertaining to the general and technical litigation relating to social security and social assistance eligibility (Decree No. 2018-772, of 4 September 2018, Official Journal of 6 September).