EMPLOYMENT CONTRACT TERMINATION: Dismissal and employees’ private life.
An employee had been dismissed after having placed a GPS beacon on the private vehicle of one of his colleagues with whom he had maintained a loving relationship in order to spy on her. He had also sent her two emails, using his professional mailbox, pressing her to contact him and reproaching her for maintaining a relationship with a work colleague. The French Supreme Court (Cour de cassation) has confirmed the decision of the trial judges who had considered that the dismissal for serious misconduct lacked any real and serious cause since the facts pertained to private life: “having admitted that the beacon had been placed on the employee’s personal vehicle, that the sending of emails through the professional tool had been limited to two messages and that the facts had had no impact within the agency or on the concerned person’s career, the court of appeal was able to conclude that the facts pertained to the employee’s private life and did not constitute a failure to fulfil the obligations deriving from her employment contract, so that the dismissal lacked any real and serious cause” (Cass. Soc., 16 December 2020, No. 19-14.665).
DISCIPLINARY DISMISSAL: Compensation in case of vexatious conditions and validation of the dismissal.
After having said that a dismissal was based on serious misconduct, a court of appeal had dismissed the claim for damages following a vexatious dismissal in compensation for the moral damage caused by the circumstances of the termination. In this decision, the Cour de Cassation added that, even when it is justified by an employee’s serious misconduct, a dismissal may cause to said employee, due to the vexatious circumstances accompanying it, damage he or she shall be entitled to claim compensation for (Cass. Soc., 16 December 2020 No. 18-23.966).
CHANGE OF EMPLOYER: Clarification relating to a transfer by way of an agreement.
The Cour de Cassation stated as a reminder that any change of employer provided for and organized by way of an agreement requires the employee’s express consent, which cannot result from the sole pursuit of his employment contract under another management: “by ruling this way, although it had noted that the employee had refused any modification of his employment contract so that by imposing on him a transfer to another employer, (the company) had in fact terminated the employment contract which was binding them, such termination being analyzed as a dismissal without a real and serious cause, the Court of appeal has violated the above mentioned text” (Cass. Soc. ,16 December 2020, No. 19-14.824).
FUNDAMENTAL FREEDOMS: Right to evidence and respect of personal data.
An employee, dismissed for serious misconduct following the theft of electronic data, reproached the trial judges for having validated his dismissal whereas, according to him, the latter was based on an illicit type of evidence notably constituted by electronic tracking that had not been declared to the CNIL. The highest court quashed and repealed the decision of the court of appeal, considering, for the first time, that “IP addresses, which allow to indirectly identify a natural person, are personal data, so that their gathering through the operation of a log file constitutes a processing of personal data and must be subject to a prior declaration with the Commission nationale de l’informatique et des libertés”. If it quashes and repeals the decision of the court of appeal, it however moderates its position by adding that “the fact that a type of evidence is illicit, pursuant to the provisions of the law No. 78-17 of 6 January 1978 […], in its version prior to the entering into force of the General Data Protection Regulation, does not necessarily entail the dismissal of the debates, the judge having to assess whether the use of this evidence has undermined the equitable nature of the proceedings as a whole, by seeking to balance the employee’s right to privacy and the right to evidence, which can justify the production of elements likely to infringe on an employee’s privacy subject to this production being essential to the exercise of this right and to the infringement being proportionate to the goal pursued” (Cass. Soc., 25 November 2020, 17-19.523).
DISMISSAL ON ECONOMIC GROUNDS: Consequences of a refusal to apply a mobility agreement.
In this case, several employees, who had refused job offers made to them pursuant to an internal mobility agreement entered into within the company, were dismissed based on the last paragraph of article L. 2242-23 of the labor code according to which “when one or more employees refuse that the agreement provisions relating to internal mobility cited in the first paragraph of article L. 2242-21 be applied to their employment contract, their dismissal is based on economic grounds, is decided as an individual dismissal on economic grounds and entitles to support and redeployment measures which shall be provided for by the agreement, which shall adapt the scope and conditions of implementation of the internal redeployment provided for at articles L. 1233-4 and L. 1233-4-1”. The Cour de Cassation adds, for the first time, that the refusal to apply an internal mobility agreement constitutes an independent economic ground for dismissal in relation with article L. 1233-3 of the labor code which defines the economic ground for dismissal. Even so, dismissals decided in this context are not exempt from any control, the trial judges having notably to make sure that the internal mobility agreement was justified by the existence of the company’s operational requirements (Cass. Soc., 2 December 2020 Nos 19-11.986 to 19-11.994).
COVID 19: Renewal of certain transitional labor law measures.
The following measures, aimed at coping with the Covid-19 outbreak, shall be extended until 30 June 2021:
- A company agreement or, failing that, an industry-wide agreement may authorize an employer to unilaterally modify or impose the dates of paid leaves within a 6-day limit;
- When the company’s interest justifies it in the light of the economic difficulties related to the Covid-19 outbreak, an employer may unilaterally impose the taking of contractual days of rest or the modification of their dates within a 10-day limit. The days of rest could be those provided for by a collective agreement about working time reduction (RTT), those provided for by an agreement about remuneration based on the number of days worked, or those resulting from the rights allocated to a time saving account (CET);
- A company-level agreement may derogate from the rules relating to the duration and to the renewal of CDDs and temporary employment contracts;
- Possibility to derogate from certain rules relating to the supply of personnel: the supply agreement between the supplier company and the user company may exceptionally relate to the supply of several employees, and the amendment to the employment contract signed by the employee cannot contain the working hours (but the weekly working time during which the employee shall be supplied must be indicated) (Ord. No. 2020-1597 of 16 December 2020, Official Journal of 17 December; Ord. No. 2020-1597 of 16 December 2020, Official Journal of 17 December).