Newsletter No. 78 – June 2015

Article L. 1237-13 al. 1 of the Labour Code provides that “the termination agreement sets out the terms of the termination, in particular the amount of the specific mutually agreed termination severance pay which may not be less than the severance pay provided for in Article L. 1234-9.” A journalist challenged the mutually agreed termination of their employment contract and claimed in particular the severance pay stipulated under the national collective bargaining agreement for journalists. The Supreme Court held that the aforementioned Article L. 1237-13 “refers solely to the provisions of Article L. 1234-9 of the same Code, such that the assessment of the minimum severance pay is that which is provided by Articles R. 1234-1 and R. 1234-2 of said Code.” Accordingly, the employee could only claim the severance payment under ordinary law (Cass. Soc., 3 June 2015, no. 13-26.799).

In this case, the Supreme Court sentenced an employer to pay damages to one of its employees for anti-union discrimination, in particular on the grounds that “the employee’s evaluation forms stated that, owing to her mandates, she was absent to a large degree and carried out few duties related to her job and that, under these conditions, it was difficult to assess the evolution of her professionalism” (Cass. Soc., 28 May 2015, no. 13-26.392).

An employee that was dismissed for unfitness applied for damages on the grounds of second-hand smoke. In dismissing the case, the court ruling on the merits of the case emphasised that, in her last performance review, the applicant stated that her working conditions were good and her only comments regarded the level of noise, and that her sick leaves were unrelated to passive smoking. The employer also stated that she joined her colleagues in the garage during cigarette breaks, even though nothing required her to do so. The Supreme Court struck down the decision of the Court of Appeal, deeming that these elements were “not of such a nature to exempt the employer from its responsibility in terms of exposure of employees to second-hand smoke” (Cass. Soc., 3 June 2015, no. 14-11.324).

Pursuant to Article L. 1152-2 of the Labour Code, no employee may be sanctioned or dismissed for reporting or testifying to repeated acts of moral harassment, except in cases of bad faith. In both cases, the Supreme Court criticised the employer for not having established in the dismissal letter said bad faith, which “may only come about as a result of knowing that the allegations are false” (Cass. Soc., 10 June 2015, no. 13-25.554 and 14-13.318).

In this case, an employee requested that the mutually agreed termination of his employment contract be reclassified as a dismissal without just cause and accused his employer of releasing him from his obligations under the non-compete clause, even though the parties had agreed during previous interviews that he would receive compensation over twelve months in connection with said non-compete clause. The Supreme Court held that the employee’s consent had been vitiated and that the mutually agreed termination of contract was null and void (Cass. Soc., 9 June 2015, no. 14-10.192).

Following a workplace accident, an employee had taken a leave of absence of several months. Declared fit for work by the occupational doctor with a temporary limit of movement, the employee acknowledged the termination of his employment contract owing to the employer’s behaviour. The court ruling on the merits of the case and the Supreme Court considered that this acknowledgment of the termination of the employment contract was founded given that “whereas, at the time of his return to work, the employee was assigned to an office in the company in accordance with the opinion of the occupational doctor, the employer failed to observe their contractual obligation to provide the employee with sufficient work” which characterised a “breach on the part of the employer of its obligations preventing the resumption of the employment contract” (Cass. Soc., 9 June 2015, no. 13-26.834).

Sanctioning undeclared work, which is a criminal offense, requires that the physical facts and intent be substantiated. The Supreme Court specified that “mere application of an unlawful fixed working-days agreement may not be used to infer the intentional nature.” Therefore, employees employed under unlawful day-per-year all inclusive agreements are not systematically entitled to lump sum compensation on the grounds of undeclared work (Cass. Soc., 16 June 2015, no.14-16.953).

A decree specifies the terms and conditions for assessing attendance at professional employer bodies at the national, inter-professional, and multi-professional level. This text also sets out the application procedure for bodies wishing to have their representation accredited (D. no. 2015-654 of 10 June 2015, JO of 13 June).

The Data Protection Authority (Cnil) has set up a simplified declaration procedure for automated processing relating to geolocation of vehicles used by employees and specified the purposes for which such processing may be implemented. It stated in particular that “the subsidiary aim of the processing may be to monitor working time, whenever said monitoring may not be carried out by any other means, subject in particular to not collecting or processing geolocation data outside the working hours of the employees in question” (Delib. Cnil no. 2015-165 of 4 June 2015).

These measures include in particular the expansion of the TESE (simplified employment declaration procedure) for companies with less than 20 employees as of 1 July 2015 (Ord. no. 2015-682 of 18 June 2015, JO of 19 June).