Newsletter No. 71 – November 2014

An employee working as a controller in a transport company appealed a court of appeal’s ruling that the grounds for their dismissal were invalid. In particular, the employee considered that the monitoring organised by their employer to control and monitor their activity constituted an unlawful means of evidence. The Supreme Court deemed that “the monitoring of an employee’s activity at their work place during working hours by a department inside the company tasked with carrying out this mission does not, in itself, constitute an unlawful means of evidence, even when the employee has not been notified beforehand.” In this case, the monitoring was lawful since it was restricted to working hours and did not violate the workers’ privacy in any way (Cass. Soc., 5 Nov. 2014, no. 13-18.427).

Relying on a ground raised ex officio, the Supreme Court deemed that the provisions of this collective bargaining agreement “which merely provide, first, that the business day must not exceed 10 hours except in the event of an exceptional overload of work, and secondly, that each employee must draw up and send to their employer a statement of their working time each quarter in which they specify where necessary their usual hours of arriving at and leaving work for the purpose of determining the usual length of their workdays and correcting any excess work, are not capable of guaranteeing that the length of work and workload remain reasonable and ensure proper distribution throughout time of the interested party’s work, thereby ensuring that the employee’s health and safety are safeguarded.” Accordingly, individual agreements covering a fixed number of working days entered into on the basis of said provisions are invalid (Cass. Soc., 13 Nov. 2014, no. 13-14.206).

A protected employee dismissed without administrative authorisation, who won reinstatement and payment of an indemnity equivalent to the amount of their wages from the day of their dismissal up to their reinstatement, is required to reimburse the unemployment benefits they collected over the same period to the French Employment Agency (Cass. Soc., 19 Nov. 2014, no. 13-23.643).

An individual employed under several temporary assignments sought for their temporary employment contracts to be recharacterised as indefinite-term contracts, along with the payment of various sums as compensation for the damage they had suffered. The Supreme Court approved the decision of the trial judges sentencing the company, noting that “the first temporary employment contracts […] were entered into due to a temporary increase in activity related to the start of new glass production” and held accordingly that “the launch of this new type of product was a part of the normal business of an optical lens manufacturing company, from which it can be seen that the employer failed to establish that the launch in question was accompanied by circumstances representing a temporary increase in activity for the company” (Cass. Soc., 29 Oct. 2014, no. 12-27.936).

Article L. 2325-5 para. 2 of the French Labour Code stipulates that “works council members and union representatives are bound by a duty of discretion with regard to confidential information presented as such by the employer.” In this case, a central works council applied for interim measures disputing the confidential nature of all the documents submitted by the employer in connection with a procedure providing information on a proposed reorganisation. In the words of the French Supreme Court, “to meet the requirements of Article L. 2325-5 of the French Labour Code, the information provided to members of the works council members must not only be declared confidential by the employer, but also be confidential in nature with respect to the legitimate interests of the company, which the company must establish.” In this case, the company was accused of having qualified “all the documents sent to the central works council as confidential without furnishing proof of the need to ensure the protection of all the data contained in said documents. It therefore follows that the employer unlawfully undermined the prerogatives of the works council members in preparing meetings, which could only be remedied by reinitiating the information and consultation procedure from the outset” (Cass. Soc., 5 Nov.. 2014, no. 13-17.270).

An employee sued their employer for paying a higher remuneration to one of their colleagues holding the same position as the employee within the same department, on the basis of lesser seniority. The Court of Appeal and the Supreme Court held that the employer had effectively violated the principle of equal treatment in this case. Indeed, “while professional qualifications or difference in the quality of work may constitute objective grounds justifying a difference in treatment between two employees in the same job, such elements that may be used to justify higher wage increases or faster advancement in the salary scale for the most deserving employee cannot justify a difference in treatment at the time of hiring, at such a time when the employer has yet to appreciate an employee’s professional qualities” (Cass. Soc., 13 Nov. 2014, no. 12-20.069 13-10.274).

In this case, an employer argued that the trial judges had sentenced them to compensate an employee in respect of acts of psychological harassment, despite the fact that said employer had taken all necessary steps to put an end to it. In the view of the Supreme Court, “employers bound by an obligation to achieve a specific result in the protection of workers’ health and safety have failed to fulfil said obligation whenever an employee falls victim to psychological or sexual harassment on the workplace by any of their employees, even if the employer has taken steps to stop such harassment.” It is therefore right that the “court of appeal awarded separate amounts corresponding to the damage resulting, on the one hand, from the employer’s failure to prevent the harassment and, on the other hand, from the consequences of the harassment actually suffered” (Cass. Soc., 19 Nov. 2014, no. 13-17.729).