NewsletterNewsletter No. 147 – March 2021

TELEWORKING: Clarification relating to the remuneration of a teleworking employee.

In this first instance decision, the social division of the court of justice decided that the employer was not bound to allocate luncheon vouchers to teleworking employees. According to this court, « the objective sought by an employer by financing these vouchers in whole or in part, is to allow its employees to cope with the additional cost related to having meals outside their home for those who are unable to have their meals at home.

In this case, the employees of the UES who are teleworking are doing so from their home and may thus not claim, in the absence of any additional cost related to having their meals out of their home, the allocation of luncheon vouchers. Thus, the situation of teleworkers and that of employees working on-site without access to a company restaurant and to whom luncheon vouchers are allocated are not comparable so that the claimant federation cannot validly claim that because they were not provided with luncheon vouchers, teleworkers did not benefit from the same rights and legal benefits than the employees working on-site” (TJ Nanterre, 10 March 2021, No. 20/09616).

STAFF REPRESENTATIVES: Time-off rights and activity exemption.

In this case, an employee, holder of an office and elected at the CHSCT, benefitted from an exemption from his activity as part of a leave for the retention of seniors in employment. He claimed that his delegation hours had to be paid in addition to the remuneration he was paid. According to the French Supreme Court (Cour de cassation), “pursuant to article L. 4614-6, then applicable, of the labor code, the use of delegation hours may not result in any loss of wages for the staff representative and when the delegation hours are taken outside the working hours, due to the office requirements, they shall be paid in addition to the working hours. It results therefrom that in case of an exemption from activity, reference shall be made to the hours the employee should have observed if he had worked and that the latter may claim the payment of the delegation hours taken outside the working hours resulting from his theoretical schedule”. In this case, the employer had not defined any theoretical working hours for the employee who benefitted from an activity exemption, so that the latter had grounds to claim the payment of his delegation hours (Cass. Soc. 3 March 2021, No. 19-18.150).

STAFF REPRESENTATIVES: Clarification concerning litigation relating to the perimeter of distinct establishments.

Pursuant to the terms of article R. 2313-1 §3 of the Labor code, trade unions having set up a local branch within a company may, within 15 days of the date on which they became aware thereof, contest, before the Direccte, the employer’s decision which fixes the perimeter of the distinct establishments. The Highest court added that “when a judge annuls the Direccte’s decision fixing the number and perimeter of the distinct establishments of a company due to the case being referred to it by the parties lacking legal personality and, thus, the right to take legal action, it may not rule, again, on this number and on this perimeter, by a decision that would be substituted for that of the administrative authority” (Cass. Soc. 3 March 2021, No. 19-21.086).

WORKING TIME: Position of the CJEU concerning on-call duty.

The CJEU has just brought some clarification, in two decisions rendered the same day, saying that on-call time “shall constitute, in its entirety, “working time” […] only if it results from a global assessment of all of the circumstances of the case […] that the limitations imposed on this worker during said time are of a nature such that they objectively and very significantly affect the latter’s ability to freely manage, within a same period, the time during which his professional services are not sought and to use such time for his own interests”. This means that on-call time could be considered, under certain conditions subject to a judge’s assessment, as effective working time apart from any action (CJUE 9 March 2021, Nos. C2021-182 and C2021-183).

HARASSMENT: Admissibility of an internal investigation report.

An employee had contested the dismissal for serious misconduct which she had been the subject of following an audit carried out by an external company and which had shown that she had thrown racial and discriminatory insults. Article L. 1222-4 of the Labor code states that “no information personally concerning an employee may be collected by a method which has not been made known to them”. Referring to this text, the trial judges had dismissed the investigation report, based on the fact that it was unfair because the employee had not been informed of the carrying out of this investigation, and considered the dismissal as lacking real and serious cause. The Highest court quashed the decision of the court of appeal considering that “an investigation carried out within a company following the reporting of harassment acts shall not be subject to the provisions of article L. 1222-4 of the labor code and shall not constitute unfair evidence as if resulting from a secret monitoring mechanism of the employee’s activity”. (Cass. Soc. 17 March 2021, No. 18-25.557).

UNFITNESS: Opinion of the Cour de cassation on challenging an occupational doctor’s opinion.

In response to a question about the possibility of challenging non-compliance with the procedure of unfitness determination by occupational doctors, the Cour de cassation stated that “such challenging which may be submitted to a labor court, pursuant to article L. 4624-7 of the labor code in its wording resulting from the order No. 2017-1387 of 22 September 2017, shall be about the occupational doctor’s opinion. The labor court may, in this respect, review elements of any nature on which the occupational doctor based him/herself in order to give his/her opinion.

The labor court shall substitute its own decision for this opinion, after having, as the case may be, ordered a preparatory inquiry.

It may not decide that part of the opinion given by the occupational doctor shall not be binding on one of the parties” (Cass. Soc. 17 March 2021, opinion No. 15002).

UNFITNESS: Impact of a modification of an employment contract on the occupational doctor’s opinion of unfitness.

Articles L. 4624-3 and L. 4624-4 of the Labor code provide for the possibility for an occupational doctor to offer individual adjustment, adaptation or transformation measures of the position prior to declaring a worker as fit. The Cour de cassation added that “the circumstance that the recommended adjustment measures entail a modification of the employee’s employment contract does not, by itself, imply the giving of an opinion of unfitness”. In this case, the restrictions imposed by the occupational doctor only concerned night work after 10:00 p.m. and the employee could keep occupying her position with daytime schedules, the employer having moreover already adjusted her work schedules. Under these conditions, she was fit for her position (Cass. Soc. 24 March 2021, No. 19-16.558).