NewsletterNewsletter No. 143 – November 2020
PROTECTED EMPLOYEES: Sanction in case of an illegal decision from the labor inspectorate.
According to the provisions of articles L. 2411-3 et seq. of the Labor code, the dismissal of a protected employee is possible only after the labor inspector’s authorization. The French Administrative Supreme Court (Conseil d’Etat) added that “the illegal refusal to authorize the dismissal of a protected employee is considered as a breach likely to constitute a ground for liability on part of the State towards the employer, provided that it caused the latter direct and definite harm. When an employer requests the payment of compensation for the harm suffered due to the illegality of a refusal to authorize a dismissal vitiated by a procedural defect, it is up to the court to seek, by forming its opinion based on all the exhibits submitted by the parties and, as the case may be, by taking into account the reason why the administrative court annulled this decision, whether the same decision could have been taken legally in a regular procedure” (CE 4 Nov. 2020, No. 428198).
STAFF REPRESENTATIVES: Clarifications as to the appointment of the representative of a union local branch.
Article L. 2142-1-1 of the Labor code enables non-representative unions in companies of at least 50 employees to appoint a local branch representative. Paragraph 3 of this text provides that “the representative of the union local branch’s office shall end on the first professional elections following his/her appointment, if the union which appointed him/her is not considered as representative within the company. An employee who thus loses his/her office of union representative in relation to a local branch cannot be appointed again as a union representative prior to the six months preceding the date of the following professional elections in the company”. The French Supreme Court (Cour de cassation) added, for the first time, that these provisions “shall not be binding as against the union if the new appointment occurs following professional elections organized in pursuance of a court decision having annulled the professional elections in which the employee had been previously appointed as a union local branch representative” (Cass. Soc. 4 Nov. 2020, No. 19-13.151).
WHISTLE-BLOWER: Clarification about the protection benefitting a whistle-blower employee.
Pursuant to article L. 1132-3-3 paragraph 1 of the Labor code, “no one can be dismissed from a recruitment procedure or from the access to an internship or to a training period within a company, no employee may be sanctioned, dismissed or be subject to a direct or indirect discriminatory measure, notably with respect to remuneration, in the meaning of article L. 3221-3, to incentive measures or measures relating to the distribution of shares, to training, to reinstatement, to assignment, to qualification, to classification, to professional promotion, to transfer or contract renewal, for having related or testified about, in good faith, facts constituting an offense or a crime which they would have become aware of while carrying out their duties”. In this case, an employee was reproaching his employer for having dismissed him following the audio recording and circulation of an informal meeting with the management. According to the employee, the disciplinary dismissal had occurred in breach of the whistle-blowers’ protection. The Highest court quashed and annulled the decision of the court of appeal which had determined the nullity of the dismissal “without noting that the employee had related or testified about facts likely to constitute an offense or a crime” (Cass. Soc. 4 Nov. 2020, No. 18-15.669).
EQUAL TREATMENT: A collective agreement may reserve certain rights for women.
In this case brought before the Court of Justice of the European Union (CJEU), an employee reproached his employer for refusing to grant him a leave, provided for by the collective agreement applicable to female workers raising their child alone. The CFTC union requested the management to extend the benefit of these provisions to male workers raising their child alone. According to the CJEU, the European legislation does not conflict with “the provision of a national collective agreement which reserves for female workers who raise their child alone a leave after expiration of the legal maternity leave, provided that such additional leave aims at the protection of female workers with regard to both the consequences of a pregnancy and the state of maternity, which it is up to the referring court to verify, by taking into account, notably, the conditions for granting said leave, its specifics and duration along with the related legal protection level” (CJEU 18 Nov. 2020, C-463/19).
STAFF REPRESENTATIVES: Clarification as to the sanction in case of a refusal to hold elections for staff representatives.
Traditionally, judges grant damages to an employee whose employer did not hold elections for staff representatives, although bound to do so. In this case, an employee requested damages for the failure to hold partial elections, following the resignation of delegates. The Cour de cassation considers that « it is up to the employee to demonstrate the existence of some harm when the staff representative body having been set up, partial elections have to be held due to the reduction in the number of elected members in the staff representative body, the employees being not deprived in such a situation of a possibility of representation and defense of their interests”. It results therefrom that an employee’s compensation in case of a failure to hold professional elections shall not be automatic (Cass. Soc. 4 nov. 2020, n°19-12.775).
EMPLOYMENT CONTRACT TERMINATION: Consequence of a dismissal concomitant of an employee’s legal action.
Employees having received a warning for non-observance of the rest areas had referred their case before the labor court to request the annulment of this sanction. They were later dismissed for serious misconduct after having performed a dangerous action. These employees claimed that their dismissal had occurred in breach of the fundamental freedom to take legal action, so that it faced nullity. According to the Court, « the only fact that a legal action taken by an employee be contemporary with a measure of dismissal does not entail that the latter results from an infringement to the fundamental freedom to take legal action” (Cass. Soc ; 4 Nov. 2020, No. 19-12.367 et 19-12.369).
COVID-19: Extension of the state of health emergency.
The state of health emergency shall be extended until 16 February 2021. As to the transitional exit measures, they shall come to an end on 1st April 2021 (Law No. 2020-1379 of 14 Nov. 2020, Official Journal of 15 Nov.). Drawing the consequences of this extension, an order specifies that the CSE can again be convened through videoconference or audioconference (Ord. No. 2020-1411 of 25 Nov. 2020, Official Journal of 26 Nov).