Newsletter No. 125 – May 2019

The French Supreme Court (Cour de cassation) already had the opportunity to consider that a victim of an occupational accident could enter into a mutually agreed termination of his or her employment contract during his or her leave (Cass. Soc. 30 Sept. 2014, No. 13-16.297), or later, after having been declared fit for work (Cass. Soc. 25 May 2014, No. 12-28.082).  For the first time, the High jurisdiction admits that “other than in a fraud or lack of consent case, […] a termination agreement [may] be validly entered into by an employee declared unfit for his job following an occupational accident” (Cass. Soc., 9 May 2019, No. 17-28.767).

An employee, member of the single personnel delegation and of the CHSCT, had signed a mutually agreed termination of his employment contract after authorization from the labor inspector.  This decision has then been annulled by the Minister of employment.  Considering that his employer violated his obligation of reinstatement, the employee requested the judicial termination of his employment contract.  According to the Cour de cassation, “the protected employee whose mutually agreed termination is null due to the annulment of the administrative authorization must be reinstated in his job or in an equivalent position […], when the employer has not fulfilled this obligation, without proving an impossibility of reinstatement, the judicial termination decided against the employer for this reason produces the effects of a dismissal that is null as it violates the protective status” (Cass. Soc., 15 May 2019, No. 17-28.547).  

For the first time, the High jurisdiction specifies that “given the purpose of apprenticeship, an employer is not bound to reinstate an apprentice showing unfitness to work of a medical nature; […] it results therefrom that the provisions of articles L. 1226-4 and L. 1226-11 of the labor code are not applicable to the apprenticeship contract”(Cass. Soc. 9 May 2019, No. 18-22.948).

Since 2016, the Cour de cassation has been relaxing its case law relating to a loss necessarily caused to an employee by an irregularity committed by the employer (Cass. Soc. 13 April 2016, No. 14-28.296).  In this case, it however indicates that “an employer who has not taken, although legally bound to, the steps necessary for the establishment of staff representative bodies, without a certificate of deficiency having been drawn up, commits a breach that causes a loss to the employees, who are thus deprived of the possibility of representation and defense of their interests”.  In such a situation, employees thus do not have to prove the existence of a loss related to these deficiencies (Cass. Soc. 15 May 2019, No. 17-22.224).

Pursuant to the provisions of article L. 1236-8 of the Labor code, in its drafting applicable before 22 September 2017, “a dismissal which, upon project completion, is of a normal nature according to usual practice and the regular practice of the profession, is not subject to the provisions of chapter III relating to dismissals for economic reasons, except where otherwise provided for by a labor collective agreement. Such dismissals are subject to the provisions […] relating to dismissals for personal reasons”.  In this case, an employee had been dismissed for project completion following termination by a client company of the technical assistance contract that bound it to his employer.  Whereas the trial judges had considered that this dismissal was based on a real and serious cause, the Cour de cassation states that “termination of the assignment given to the employer by its client, could not constitute project completion so as to justify termination of the employment contract” (Cass. Soc. 9 May 2019, No. 17-27.493).

Being requested by Spain to issue a preliminary ruling, the Court of Justice of the European Union stated that employers had “the obligation to establish a system allowing to measure each worker’s daily working time” (CJEU, 14 May 2019, C-55/18).

If the minutes drawn up by the labor inspector have the nature of measures of investigation or prosecutions interrupting the statute of limitations for prosecution, the same is not true of the labor inspector’s visiting the company’s premises.  Such a visit is thus not an act interrupting statutes of limitations (Cass. Crim. 21 May 2019, No. 18-82.574).

Adopted for the application of article 104 of the law No. 2018-771 of 5 September 2018 on freedom to choose one’s professional future, this decree fixes notably the procedure for giving a formal notice to employers with fifty or more employees who are not covered by an agreement relating to gender equality, or who do not publish their results in this respect, or when these companies have not defined the mandatory corrective measures.  If the concerned employers are not able to prove that they fulfill their obligations, the labor inspector shall be entitled to impose penalties upon them (Decree No. 2019-382 of 29 April 2019, Official Journal of 30 April).

The Constitutional Council having validated almost all of its provisions (CC No. 2019-781 DC of 16 May 2019), the law relating to companies’ growth and transformation was published on 23 May 2019.  The main measures pertaining to labor law relate to employee savings.  This text notably provides for the setting up of profit sharing measures within companies (or economic social units (UES)) with 50 employees or more for five consecutive years.  The possibility to put the profits into blocked current accounts has been removed for the future.  Furthermore, company contribution shall benefit from the “forfait social” employer contribution reduced to 10%.  Concerning incentive measures, it shall now be possible to provide for a multiyear calculation method related to the company’s results or performance (Law No. 2019-486 of 22 May 2019, Official Journal of 23 May).