NewsletterNewsletter No. 142 – October 2020

DISMISSAL ON PERSONAL GROUNDS: Limits to a father’s protection against dismissal after birth.

In this case, an employee had taken a three-day leave from 23 to 25 November 2015 after his child’s birth, on 20 November 2015. He benefitted from the four-week protection period against dismissal, provided for at article L.1225-4-1 of the labor code, prior to being dismissed for incompetence after said period. It shall here be stated as a reminder that, since the law of 4 August 2014 for real gender equality, a father also benefits from a protection against dismissal during the four weeks following the birth of his child, the employer being entitled to dismiss him only if he proves the concerned person’s serious misconduct, or his impossibility to maintain the contract for a reason unrelated to the arrival of the child. The employee challenged the validity of his dismissal, because the preparatory measures (the notification to attend the pre-dismissal meeting and the meeting itself) had taken place during the protection period. The employee indeed invoked European case law restated by the French Supreme Court (Cour de cassation), according to which measures preparatory to dismissal are forbidden during the protection period which employees benefit from during maternity leave. The Court of appeal had allowed the employee’s claim and had determined the nullity of the dismissal. The Cour de cassation decided differently, considering that the ban on the measures preparatory to dismissal were applicable only to pregnant employees, to employees who had given birth or to breastfeeding employees during their maternity leave and did not extend to the father, during the protection period provided for at article L.1225-4-1 of the labor code (Cass. Soc. 30 Sept. 2020, No. 19-12.036).

DISMISSAL FOR UNFITNESS: Failure to consult the CSE in case of dismissal for unfitness with a non-occupational origin.

Since 1^st January 2017, the social and economic committee (CSE) must imperatively be consulted in relation to the redeployment of an employee declared unfit, whether such unfitness has an occupational or a non-occupational origin (previously, such mandatory consultation was reserved for unfitness with an occupational origin). In a decision of 30 September 2020, the Cour de cassation shed light on the consequences of the absence of a consultation of the CSE about the redeployment of an employee whose unfitness has a non-occupational origin. Indeed, in this case, an employee had been declared unfit for his post by the occupational doctor, following an examination of 10 March 2017. The employer had dismissed the employee for unfitness and the impossibility of redeployment without having previously collected the employees’ representatives’ opinion. The employee concluded that the obligation of redeployment had not been fulfilled and that his dismissal was without real and serious cause. The Court of appeal of Bourges dismissed his claim, considering that non-compliance with the obligation to consult the employees’ representatives about redeployment does not have the effect of turning the dismissal into a dismissal without real and serious cause, unlike the dismissal for occupational unfitness for which it is expressly provided for by article L. 1226-15 of the labor code. The Cour de cassation decided otherwise and quashed the decision of the Court of appeal, considering that it “results from these texts (article L.1226-2 and L.1226-2-1, paragraphs 2 and 3 of the labor code) that disregarding the provisions relating to an employee’s redeployment declared unfit after a non-occupational accident or an illness, among which that imposing on the employer to consult the employees’ representatives, deprives the dismissal of a real and serious cause” (Cass. Soc. 30 Sept. 2020, No. 19-11.974).

MUTUALLY AGREED TERMINATION: Impact of the non-delivery of a copy of the agreement to the employee.

The recent and strict line of cases relating to the delivery of a copy of the termination agreement to each of the parties becomes confirmed. In two decisions of 3 July 2019 (see our issue No. 127 of July 2019), the Cour de cassation had indicated that “only the delivery to the employee of a copy of the agreement signed by both parties allows him/her to request the approval of the agreement and to knowingly exercise his/her right of withdrawal”. In a new case, an employee concluded a mutually agreed termination with his employer, which was approved by the Dirrecte and became effective on 5 September 2015. The employee then brought his case before the labor court claiming the nullity of the termination due to the non-delivery of a copy of the agreement. The Court of appeal upheld the employee’s claim by annulling the termination agreement and by indicating that said annulment created the effects of a dismissal without real and serious cause. The Cour de cassation confirms the Court of appeal’s decision by indicating the following: “the court of appeal, which noted that no mention of the delivery of a copy of the agreement appeared in the form and which admitted that the employer had brought no proof element as to the existence of such a delivery, rightly concluded, without having to carry out an ineffective search, that the termination agreement was null” (Cass. Soc. 23 Sept. 2020, No. 18-25.770).

NON-COMPETE CLAUSE: Formality of the waiver of the non-compete clause.

In this case, an employer had waived the non-compete clause by email, whereas the employment contract provided for a waiver by registered letter with acknowledgement of receipt. The employee referred his case to the labor court, claiming financial compensation of the non-compete clause and his claim was dismissed by the court of appeal. The Cour de Cassation does not follow it, considering that proof that the employee had been aware, by an email from his employer in which he waived the clause, that he was no longer bound by this clause could not replace the registered letter requirement (Cass. Soc. 21 Oct. 2020, No. 19-18.399).

DUTY OF LOYALTY: Creation of a competing company.

An employee had created a company competing with his employer’s after having resigned and during his notice period. The employer had notified him of the termination of his notice period for serious misconduct considering that it constituted an act of unfair competition. However, the Cour de cassation considered that, since only registration of the competing company had occurred during the notice period whereas its operation had started only after termination of said period, the employee had not breached his duty of loyalty (Cass. Soc. 23 Sept. 2020, No. 19-15.313).

COVID-19: New general measures in relation with the health emergency.

As from 30 October 2020, traveling outside the home is forbidden, except, notably, when traveling to or from a place where a professional activity is carried out. Only some establishments open to the public, listed in the below mentioned decree, are authorized to remain open. As during the first lockdown in March 2020, employers are requested to favor, whenever possible, telework

(D. No. 2020-1310 of 29 Oct. 2020, Official Journal of 30 Oct.).