Newsletter No. 131 – November 2019

Considering she had been the victim of some discrimination related to her pregnancy, an employee reproached her employer notably for having reinstated her, upon her returning from her child-care leave, in a position unrelated to her original duties.   The French Supreme Court  (the Cour de cassation) quashed the court of appeal’s decision which considered that evidence of illicit discrimination was not provided, “without analyzing whether, in view of the considerably higher number of women compared to men choosing to benefit from a parental leave, the employer’s decision, in breach of the above mentioned provisions, to entrust the employee, upon her returning from her parental leave, only with administrative and secretarial tasks unrelated to her previous duties […] did not constitute an element leading to suppose the existence of indirect gender-based discrimination and whether this decision was justified by objective elements unrelated to any discrimination” (Cass. Soc. 14 Nov. 2019, No. 18-15.682).

According to the Cour de cassation, “in matters relating to labor law, evidence can be produced in any way,[…] nothing prevents the labor court judge from examining an attestation established by an employee who had represented the employer in the dismissal procedure and […] it is up to this judge only to assess at their sole discretion the value and scope thereof” (Cass. Soc. 13 Nov. 2019, No. 18-13.785).

Article L. 1235-7-1 § 1 and 2 of the Labor code provides that “a collective agreement [relating to the PSE], […] the content of the employment safeguard scheme, the decisions made by the administration […] and the regularity of the economic redundancy procedure cannot be the subject of a dispute distinct from that relating to the approval decision […]. These disputes are within the jurisdiction of, in first instance, the administrative tribunal, with the exclusion of any other administrative or judicial action”.  According to the Cour de cassation, these provisions do not prevent the ordinary judge from receiving requests aimed at monitoring any psychosocial risks resulting from the implementation of the restructuring project (Cass. Soc. 14 Nov. 2019, No. 18-13.887).

The Cour de cassation states as a reminder that when an employer is bound by an obligation to negotiate with respect to salaries, it consists in an obligation to open the annual negotiation on salaries, not to reach an agreement (Cass. Civ 2., 7 Nov. 2019, No. 18-21.499).

The nullity of a flat-rate agreement covering days worked constitutes an infringement to the employee’s rights as to the organization of his or her working time and his or her rest periods.  Hence, such an infringement, which is not without consequence on the employee’s private life, makes it impossible for the employment contract to continue and thus constitutes a serious enough ground to justify the judicial termination of the employment contract.  In this case, the flat-rate agreement had been entered into on the basis of the former provisions of the applicable collective agreement.  The employer should have submitted to the employee a new flat-rate agreement covering days worked after 1 April 2016, which was the date on which the new provisions complying with the legal requirements became effective (Cass. Soc. 16 Oct. 2019, No. 18-16.539).

Article 122-4 of the criminal code allows the person being sued for defamation after having disclosed sexual or moral harassment facts which he or she considers to be the victim of, to become exempt from criminal liability upon disclosing these facts.  The Cour de cassation specifies that “in order to benefit from this provision of criminal liability exemption, the person sued on this ground must have related such wrongdoings only to his or her employer or to bodies in charge of ensuring the application of the provisions of the labor code and not, as in this case, having also sent it to persons not acting in one of these capacities”.  In this case, the employee was found guilty of public defamation because she had disclosed facts she had been the victim of to persons other than the employer’s representative or the labor inspector (Cass. Crim. 26 Nov. 2019, No. 19-80.360).

According to this court, « although the provisions of article L. 1235-3 of the labor code […] limit the judge’s power of assessment, they do not however have the effect of violating the provisions of the European convention for the protection of human rights and fundamental freedoms recognizing a right of access to the courts and to a fair trial, since it is up to the judge who was asked to assess the merits of the case to decide”.  It adds that these provisions “leave, between a minimum limit and a maximum limit expressed in months of gross salary […], a power of assessment to the trial judge, so that the compensation addresses the employee’s specific situation”.  It concludes that “the setting up of a schedule is not per se contrary to the texts referred to by the appellant and the willingly participating unions” (CA Paris, 30 oct. 2019, No. 16/05602).

This text sets the conditions for the electronic transmission of the minutes drawn up at the time of the elections of the economic and social committee’s staff delegation members.  The provisions vary depending on whether the vote takes place in envelopes, or electronically (Administrative order of 4 Nov. 2019, Official Journal of 16 Nov.).

The Unédic has published a circular consisting of 15 technical sheets, clarifying the new rules resulting from the unemployment insurance regulation attached to the decree No. 2019-797 of 26 July 2019.  In addition, a decree of 30 October 2019 corrects various drafting errors or inconsistencies within the reform of the employment insurance scheme, especially regarding the bonus-malus (Decree No. 2019-1106 of 30 Oct. 2019, Official Journal of 31 Oct; Unédic circular No. 2019-12 of 1 Nov. 2019).