Newsletter No. 87 – March 2016

In this case, the occupational doctor stated in a fitness notice that a transfer on a position closer to the employee’s domicile was to be contemplated as soon as possible. The employer considered that the occupation doctor had offered the employer to contemplate a mutation without any binding effect. The employer therefore maintained the employee on her position. The judges, approved by the French Supreme Court, condemned the employer to pay the employee damages to compensate for the prejudice resulting from failure to achieve its obligation of security. Indeed, the employer was reproached for not being in a position to justify in concrete terms any steps enabling the employee’s transfer (Sup. Court, Labour Section, 2 March 2016, n°14-19.639).

In this case, the judges ruled that a casual work contract was in fact an indefinite term full-time employment contract considering the annual maximum work duration provided for by the applicable collective bargaining agreement was exceeded. The Supreme Court reversed the decision of the court of appeal and considers that “even though exceeding such duration gives rise to the payment of corresponding hours and, as the case may be, when the employee worked beyond the limit set in Article L. 3123-34 of the Labour Code, to damages compensating for the prejudice suffered, it does not affect in itself the qualification of the casual work contract” (Sup. Court, Labour Section, 2 March 2016, n°14-23.009 and 14-23.216).

Article L. 1226-10 of the Labour Code provides that, in case of unfitness duly certified by the occupational doctor, the employer shall present redeployment offers to the employee concerned taking “into account, after the opinion of the staff delegates, the written findings and the indication stated by the occupational doctor”. In this case, the employer was condemned to pay an indemnity of twelve months’ salary to the employee, on the ground that the staff delegate had not been consulted prior to the first redeployment offer. The Supreme Court states that “the opinion of the staff delegates on the redeployment of the employee […] must be obtained after the employee’s unfitness is certified […] and prior to any effective redeployment offer being made to the employee.” In this case, the employer was not in breach of its obligations, to the extent that it had consulted the staff delegate on another redeployment offer, which had been presented after the unfitness notice and prior to the invitation of the employee to a pre-dismissal meeting (Sup. Court, Labour Section, 16 March 2016, n°14-13.986).

The Supreme Administrative Court states that, in the event that the request to dismiss a protected employee “is based on the extended or repeated absences due to the employee’s illness, it is up to the labour inspectorate […] to seek […] whether, considering the nature of the employee’s duties and the rules applicable to his contract, his absences disrupt the running of the company seriously enough and whether such disruptions cannot be faced by temporary measures and therefore are such as to justify the employee’s final replacement by hiring another employee”. Therefore, where such conditions are fulfilled, the employer is entitled to request the employee’s dismissal, without having to seek a position enabling his redeployment (Administrative Supreme Court, 9 March 2016, n°378129).

In a decision reached at the end of last year, the Constitutional Court repealed with effect as from January 1^st 2017 the provisions of Article L. 4614-13 of the Labour Code, pursuant to which the costs resulting from an expertise of the Hygiene and Security Committee are to be borne by the employer (Constitutional Court, « QPC » 27 November 2015, n°2015-500). According to constant case law interpreting such provision, the costs resulting from an expertise remain payable by the employer, even when the latter obtains the court-ordered cancellation of the decision to have recourse to the expertise. The decisions of the Constitutional Court are binding upon the courts. Therefore, the Supreme Court states that, until January 1^st 2017, judges shall apply the provisions set above and the case law resulting therefrom (Sup. Court, Labour Section, 15 March 2016, n°14-16.242).

The Constitutional Court, ruling on a high-priority question of constitutionality (“QPC”), considers contrary to the French Constitution the provisions of the second paragraph of Article L. 3141-26 of the Labour code, pursuant to which the paid leave indemnity “is due since termination of the employment contract does not result from the employee’s willful misconduct, whether such termination is at the employee’s or the employer’s initiative”. The Constitutional Court indeed considers that there is an unequal treatment between employees subject to ordinary rules of law and those who benefit from a paid leave fund, to the extent that the latter retain their right to an indemnity in lieu of paid leave in case of a willful misconduct (Constitutional Court, « QPC » 2015-523, 2 March 2016).

The law relating to social discussions and employment of August 17^th, 2015 created the possibility for companies with at least 300 employees to gather by a collective bargaining agreement several institutions representing employees (Article L. 2391-1 of the Labour Code). Such decree clarifies the minimum number of representatives who are part of such body, as well as the number of hours and the number of days of training that are allocated to the employee representatives for the performance of their functions (D. n°2016-346 of 23 March 2016, Official Journal of 24 March).

The law relating to social discussions and employment of August 17^th, 2015 amended the conditions to set up a unique staff representation, which is now possible in companies of less than 300 employees. Such decree notably sets the minimum number of representatives, who are part of such institution, the number of hours allocated to perform their functions as staff representatives, the conditions of appointment of the secretary and the conditions to have recourse to a common expertise. Lastly, it defines the conditions to assess whether the threshold of 300 employees is exceeded (D. n°2016-345 of 23 March 2016, Official Journal of 24 Mars).