Newsletter No. 85 – January 2016

Pursuant to Articles L. 1237-13 and L. 1237-14 of the French labour code, the form relating to the mutually agreed termination of the employment contract cannot be sent to the labour authority (DIRECCTE) for approval prior to the expiration of a time period to cancel the agreement. In this case, the expiration date of such time period indicated in the agreement was wrong, so that the request for approval of the agreement was sent prior to the expiration date. The labour authority refused to approve the termination agreement, which the judges, then the Supreme Court, validated. The employer then requested the judge to approve such agreement. According to the Supreme Court, “it is not in the judge’s powers to rule on the approval of a mutually agreed termination instead of the labour authority” (Supreme Court, Labour Section, 14 January 2016, n°14-26.220).

While the Labour Section of the Supreme Court ruled last December that the employer cannot justify its breach by putting forward any difficulty with the occupational medicine organization (Supreme Court, Labour Section, 9 December 2015, n°14-20.377), the Criminal Section reached the same decision, considering that the employer cannot “put forward any statutory exception to the obligation set by Article R. 4624-10 of the French labour code and that the communication of the hiring declaration to the URSSAF, including a request for a hiring medical examination, does not release the employer from ensuring the effectiveness of the examination”. It thus confirms the position of the judges ruling on the merits according to which, “by failing to ensure the effectiveness of its security obligation by ensuring the achievement by the occupational doctor, prior to the hiring and at the latest prior to the expiration of the trial period, of the medical examination aimed at checking the employee’s fitness for his position, the employer committed the offences prosecuted and cannot be released from this obligation by putting forward […] the material impossibility to implement its obligation”(Supreme Court, Criminal Section, 12 January 2016, n°14-87.695).

In this case, a staff delegate was notified a warning for not notifying his employer in advance that he would be absent from his workstation during the hours of his office as a staff representative. According to the Supreme Court, “a disciplinary sanction can only be ordered in case of the employee’s breach of his professional obligations towards the employer and therefore the Court of appeal was right in cancelling the disputed sanction against the employee for facts relating to his office as a staff delegate” (Supreme Court, Labour Section 12 January 2016, n°13-26.318).

An employee, who had resigned after the refusal of his application for the voluntary departures scheme, claimed notably the payment of the departure indemnity provided for by the scheme. The Supreme Court approves the judges ruling on the merits for acceding to such claim after having observed that “the departure of the claimant enabled to preserve the jeopardized position of another employee”, so that “the employee fulfilled the conditions upon which the scheme conditioned a voluntary departure as part of the category “position in mutation” and that he was a creditor of the departure indemnity provided for by such scheme” (Supreme Court, Labour Section, 12 January 2016, n°13-27.776).

A Romanian employee, dismissed for breaching the internal rules which prohibited the use of the company’s resources for personal purposes, challenged such measure on the ground that his employer violated Article 8 of the European Convention on Human Rights (ECHR) relating to the right for one’s private and family life, home and correspondence, by monitoring the content of his emails. While the European Court of Human Rights admits that Article 8 of the ECHR is applicable to this case, it considers that the employer is entitled to check that his employees perform their professional duties during working time and that he can therefore access their professional email accounts and sanction them based on the content thereof (ECHR, 12 January 2016, Bărbulescu v. Romania, n°61496/08).

In case of breach by the employer of employees seconded to France, the client or the contractor must communicate a statement in French to the competent labour authority (DIRECCTE). In case of failure to pay the seconded employees, the client or the contractor is now held severally and jointly liable with the employer “for the payment of the remunerations and indemnities owed to each and every employee seconded, together with the relating social contributions owed to the collecting authorities, where the employee is registered with a French social security scheme”. Such new provisions are codified under Articles R. 1263-13 to R. 1263-19 and R.1264-3 of the French labour code (D. n°2016-27 of 19 January 2016, Official Journal of 20 January).

Companies with less than 250 employees can claim for an incentive for the hiring of an employee whose remuneration, as provided for by the employment contract, is less than or equal to the hourly minimum statutory wage increased by 30%, providing that the following cumulative conditions are fulfilled:

– the employee must be employed under an indefinite-term contract or a fixed-term contract of at least six months;

– the contract must start between January 18 and December 31, 2016.

The amount of this incentive is set at 4,000 € maximum per employee hired (D. n°2016-40 of 25 January 2016, Official Journal of January 26).

This text sets, on the one hand, the categories of employees who can be released, at their initiative, from the registration with the mandatory collective coverage and, on the other hand, the thresholds enabling the collective bargaining agreements to have the employees benefit from a payment aimed at funding their individual additional health coverage (D. n°2015-1883 of 30 December 2015, Official Journal of 31 December).