NewsletterNewsletter No. 139 – July 2020
STAFF REPRESENTATIVES: Assessment of how distinct establishments are determined for the setting up of the CSE.
Pursuant to the provisions of article L. 2313-4 of the Labor code, “in the absence of an agreement […], an employer sets the number and scope of the distinct establishments, given the management autonomy of the establishment’s manager, especially in relation to staff management”. In this case, a company had, by a unilateral decision, set the number of establishments at 20 and determined their scope. The Direccte having rejected all appeals filed against this unilateral decision, some unions have submitted the case to the relevant primary court, which has welcomed this dispute and has set again the number and scope of the company’s establishments. The French Supreme Court (Cour de cassation) validates this decision, considering “that it results from article L. 2313-5 of the labor code that, when a judge is submitted disputes about an administrative authority’s decision as to the determination of the number and scope of the distinct establishments, it is up to him to decide on the legality of said decision considering all of the factual circumstances which have been justified on the date of the administrative decision and, in case of annulment of the latter decision, to rule on the case again, by determining this number and this scope based on all of the factual circumstances on the date on which the judge has to decide the case”. In this case, the trial judge was right in observing that there did not exist, at the store level, a sufficient autonomy as to staff management to decide that each store constituted a distinct establishment, the store managers notably having no power to punish or hire (Cass. Soc. 8 July 2020, No. 19-11.918).
HEALTH AND SAFETY: Clarification as to the limitation period of the prejudice of anxiety.
The starting point of the limitation period concerning the action whereby an employee seeks compensation from his employer (reproaching him for failing to comply with his safety obligation) for his prejudice of anxiety is the date on which the employee was made aware of the high risk of developing a serious disease resulting from his exposure to asbestos. This starting point cannot be prior to the date on which such exposure ended. In this case, the Cour de cassation reproached the court of appeal for not having sought the date on which the employees were no longer exposed to a high risk of developing a serious disease resulting from exposure to asbestos (Cass. Soc. 8 July 2020, 18-26.585).
SOCIAL AND ECONOMIC COMMITTEE: Clarifications relating to the consultation period of the CSE.
In the absence of a collective agreement relating to this issue, the labor code sets the periods on expiry of which the CSE is deemed to have been consulted and have given a negative opinion. According to the Cour de cassation, these foreclosure periods may be extended upon agreement between the employer and the committee (Cass. Soc. 8 July 2020, No. 19-10.987).
FUNDAMENTAL FREEDOMS AND RIGHTS: Scope of the prohibition on wearing a beard.
An employee, dismissed for serious misconduct for having worn a beard “which could have had a religious connotation”, referred a case to the labor court claiming the nullity of the dismissal, the latter being based on, according to him, discriminatory grounds. Underlining that the company’s internal rules included no neutrality clause, the Cour de cassation considers that the prohibition imposed on the employee, during the carrying out of his duties, on wearing a beard, as it expressed religious and political convictions, and the injunction made by the employer to go back to an appearance considered by the latter as more neutral, established a discrimination directly founded on the employee’s religious and political convictions. The High jurisdiction also states as a reminder that only a professional and decisive requirement, resulting from the nature of the professional activity or from the conditions in which it is carried out and as far as the sought objective is legitimate and that the requirement is proportionate, may justify a dismissal for misconduct. Yet, it considers that “requests from a client relating to the wearing of a beard which could have a religious connotation could not, by themselves, be considered as a professional and decisive requirement” and the employer did not justify, in this case, the specific safety risks he put forward, related to the wearing of a beard, during the performance of the employee’s assignment. (Cass. Soc. 8 July 2020, No. 18-23.743).
LEAVES: Clarification as to the rules setting the order of annual leaves.
An employee who had been dismissed notably for having refused to sign a deferred leave application form challenged his dismissal by notably reproaching his employer for having forced him, overnight, to spend all of his unused leave. Stating as a reminder that “entitlements to deferred or earned leave are of the same nature, so that the rules setting the order of annual leaves apply to deferred annual leaves”, the Cour de cassation agrees with the court of appeal which decided that by compelling without a prior notice the employee to use all of his deferred leave, the employer had abused his managerial power, so that the employee’s refusal lacked any wrongful nature (Cass. Soc. 8 July 2020, No. 18-21.681).
COVID-19: Health crisis and paid leave.
A company, in which a collective agreement provided for the staff representatives to be informed, each year in the month of December, about the paid leave periods and days of rest during the following year, informed the employees, on 4 June 2020, of its decision to extend the mandatory period of leave taking, due to the health crisis. In an interim order, the Court of justice of Lyon specifies that a company “cannot […] under the guise of its managerial power, which notably authorizes it to fix the company’s closure dates and to impose paid leave on the employees during such closure, unilaterally call into question an undertaking freely given with the unions and materialized by “a collective agreement”, even if the CSE’s opinion has been requested afterwards on this issue (TJ Lyon, 9 July 2020, No. 20/00838).
ECONOMIC REDUNDANCY: Redundancy challenged in case of a company’s cessation of business.
According to the Cour de cassation, “the fact that the company’s cessation of business results from its compulsory liquidation does not deprive the employee of the possibility to invoke the existence of the employer’s misconduct which would have caused the cessation of business, likely to deprive the redundancy of a real and serious cause” (Cass. Soc. 8 July 2020, No. 18-26.140).
COVID-19: Law organizing the end of the state of health emergency.
This law notably authorizes the Prime Minister to take by decrees, from 11 July to 30 October 2020, decisions aiming at restricting the movement of persons and the access to the establishments open to the public (L. No. 2020-856 of 9 July 2020, Official Journal of 10 July).