Newsletter No. 94 – October 2016

Following a merger, the absorbing company had offered the employees of the absorbed company an option consisting either in retaining the individual rights acquired with the previous employer or in signing a new employment contract to enable them to benefit from a bonus implemented through an in-house collective bargaining agreement in consideration of their individual acquired rights. Raising the plea as of right, the Supreme Court decides that “the new employer cannot condition the collective benefits in the new company, whether resulting from an in-house collective bargaining agreement, an in-house binding practice or a unilateral undertaking of the employer, upon the waiver by the transferred employees of the rights which are conferred upon them pursuant to an in-house binding practice or a unilateral undertaking in force in their first company upon the transfer or of the maintenance of the individual acquired rights in the event of termination of an in-house collective bargaining agreement” (Supreme Court, Lab. Section, 13 October 2016, n°14-25.411).

Article L. 1235-2 of the Labour Code provides that “in the event that dismissal occurs without performance of the required procedure, but for a real and serious ground, the judge imposes observance of the prescribed procedure upon the employer and allocates to the employee an indemnity to be borne by the employer which cannot be more than one month’s salary“. Ruling on a plea raised as of right, the Supreme Court indicates that this indemnity can only be allocated when the employment contract was terminated through dismissal. Therefore, there is no ground for allocating such indemnity to the employee in case of constructive dismissal which was judged to equal to an unjustified dismissal (Supreme Court, Lab. Section 19 October 2016, n°14-25.067).

A couple of concierges, the victims of harassment committed by the residents of the building, reproached the judges ruling on the merits for not condemning their employer to pay them damages to remedy  the breach of their security obligation. The Supreme Court approves the court of appeal for so ruling, to the extent they noted that “the facts established by the employee [had] been committed by third parties who did not carry out any authority on the employee concerned, de facto or de jure, on the employer’s account”, “given that the employee only put forward that the breach of the security obligation resulted from acts of moral harassment” (Supreme Court, Lab. Section 19 October 2016, n°14-29.623 and 14-29.624).

As from January 1^st, 2017, the employer will no longer have to systematically provide their employees with cloakrooms. They will be allowed to provide their workers, who are not under the obligation of wearing specific working clothes or individual protective equipment, with a secured piece of furniture near their work stations. Besides, companies where the “location” dedicated to meals can be fit out in the premises dedicated to work will no longer have to request an authorization from the labour inspectorate. A mere declaration sent both to the labour inspectorate and the occupational doctor will be sufficient (Decree n°2016-1331 of 6 October 2016, Official Journal of 8 October).

Pursuant to Article L. 1235-3 of the Labour Code, “in the event that an employee is dismissed on a ground which is not real and serious, the judge can offer reinstatement of the employee in the company with his acquired benefits being maintained. Should either party so refuse, the judge shall allocate an indemnity to the employee. Such indemnity, to be borne by the employer, cannot be less than the salaries of the last six months“. An employer challenged the compliance of such provision with the Constitution, considering that this minimum indemnity of six months’ salary is in breach of equality since it is provided only for companies with a headcount of more than 10 employees. The Constitutional Court considers that this is not the case, to the extent that the legislator thus “intended to avoid imposing too heavy expenses on the companies which are deemed to be economically more fragile, by arranging the conditions in which the employer can incur liability. Thus they pursued an aim of general interest.” Accordingly, the legislator could limit the scope of this indemnity, by retaining the criterion of the company’s headcount, as long as the employees’ right to be indemnified is not restricted. The Constitutional Court adds, lastly, that “the retained criterion therefore matches the purpose of the law, which consists in deterring employers to proceed with dismissals without real and serious grounds” (Constitutional Court, 13 October 2016, n°2016-582, high-priority question of constitutionality “QPC”, Official Journal of 15 October).

Henceforth, the obligations relating to the displaying of information are replaced by obligations of “communication through any and all means” to the employees concerned. The same way, some obligations of transmission to the labour inspectorates are replaced by obligations to hold some documents at their disposal (Decree n°2016-1417 and 2016-1418 of 20 October 2016, Official Journal of 22 October).

It is henceforth possible for employers’ organizations and employees’ trade unions, which are representative at industry level, to submit questions in the name of their members with the social security authorities (“Acoss”). Moreover, employers can also do so with the authority in charge of the employment of disabled people (“Agefiph”) in order to check whether they comply with their obligations in terms of employment of disabled workers. The decree of 25^th October gives details on the recourse to these two mechanisms (Decree n°2016-1435 of 25 October 2016, Official Journal of 27 October).

In terms of information, consultation and operation of the works council, the threshold of 300 employees is henceforth assessed in the same conditions as the crossing of the threshold of 50 employees for the setting up of a works council: this threshold must be reached for twelve months, consecutive or not, over the last three years (Decree n°2016-1435 of 25 October 2016, Official Journal of 27 October).