Newsletter No. 70 – October 2014

An employee was dismissed for serious misconduct, after having been suspended, on the ground that she had, in particular, acted in a bossy and aggressive manner to the employees she supervised, as a result of which an employee was placed on sick leave for ‘reactive anxiety linked to the workplace’. However, for the French Supreme Court, ‘management methods used by a supervisor only constitute psychological harassment if they are implemented vis-à-vis a given employee in the form of repetitive acts, the object or effect of which is to cause a deterioration in working conditions that could infringe anemployee’s rights or harm his dignity, affecthis physical or mental health or jeopardise his career’, which had not happened in the case in point. It added that ‘an employer’s obligation to take all necessary steps to prevent or put a stop to psychologicalharassment does not in itself mean that employers are required to immediately terminate the employment contract of employees responsible for a situation that could constitute or develop into a case of psychological harassment’. In the case in point, it had only been shown that the employee had managed other employees in a bossy and inappropriate manner, and this was not incompatible with the continued employment of the employee by the company (Cass. Soc., 22 October 2014, No. 13-18.862).

As regards work injuries, Article L. 1226-9 of the French Labour Code provides as follows: ‘during periods of suspension of an employment contract, employers may only terminate the contract if they can prove serious misconduct by the relevant employee or that they are unable to continue the contract for a reason that is not related to the accident or disease’. In this particular case, an employee had accepted a mutually agreed termination a few months after a workplace accident, following which she had not been subject to a medical examination for her return to work. She claimed that the termination was invalid based on the provisions of the above Article. The French Supreme Court held that ‘the Court of Appeal had correctly ruled that, save in the event of fraud or vitiated consent, which had not been alleged in the case in point, the mutually agreed termination is valid under Article L. 1237-11 of the French Labour Code during a period of suspension following a work injury or occupational disease’ (Cass. Soc., 30 September 2014, No. 13-16.297).

An employee dismissed for excessive use of her work e-mail account for personal reasons claimed that she had been unfairly dismissed, based mainly on the fact that the implementation of the individual control system checking the quantity and flow of e- mails had only been reported to the French Data Protection Agency (CNIL) after she had been given notice to attend a pre- dismissal meeting. The trial judges dismissed her claim, confirming the fact that she had made excessive use of her e-mail account for personal reasons, which had inevitably had a negative impact on her work. Noting that ‘information collected by an automated personal data processing system before the system is reported to the French Data Protection Agency is inadmissible’, the French Supreme Court quashed the Court of Appeal’s decision as it had ‘based its decision solely on pieces of evidence obtained using an automated personal data processing system before it had been reported to the French Data Protection Agency, whereas inadmissible evidence must be disregarded when making its decision’ (Cass. Soc., 8 October 2014, No. 13-14.991).

An employee challenged his dismissal notified following aggressive behaviour during a trip organised by the company as a prize for the winners of an in-house competition. The trial judges held that his dismissal was invalid, as the conduct in question, which occurred during a leisuretrip outside of working hours and the place of work, fell within the sphere of his personal life even if other company employees were present. The Supreme Court quashed this ruling, holding that ‘threats, insults and aggressive behaviour towards the employee’s colleagues and supervisorsduring a trip organised by the employer as a prize for the winners of an in-house national challenge fell within the sphere of his working life’ (Cass. Soc., 8 October 2014, No. 13-16.793).

In the case in point, an employee had been made redundant and claimed compensation under a non-disclosure clause imposed on him under his employment contract. The French Supreme Court upheld the Court of Appeal’s ruling that ‘the clause in question did not prevent the employee from accepting another job at his own discretion and merely prevented the employee from disclosing information in his possession about the company’, and accordingly ‘no financial compensation was payable’ (Cass. Soc., 15 October 2014, No. 13-11.524).

From 1 January 2015 onwards, the personal training rights scheme (DIF) will be replaced by personal training accounts. A French Decree has been issued setting out the terms governing the implementation of the new accounts, as regards the crediting, use and financing of the accounts. It provides, in particular, that the amount of financing payable by companies for training initiatives will correspond to the number of hours earned by the employee multiplied by a fixed amount of at least €13, to be set in a collective agreement. The Decree also allows personal training rights to be used within the framework of the personal training account scheme (D. No. 2014-1119 of 2 October 2014, JO of 4 October).

In these types of companies, employers may inform employees of a proposed sale at an information meeting, by displaying the information at the workplace, by e-mail, by letter delivered in person against receipt, by letter sent by registered post with acknowledgement of receipt, by an extra-judicial instrument or by ‘any other means providing proof of the date of receipt’ (D. No. 2014-1254 of 28 October 2014, JO of 29 October).