TELEWORKING: Clarification relating to the remuneration of a teleworking employee.
In our March newsletter (No. 147) we referred to a decision rendered on 10 March 2021 by the Court of justice of Nanterre, which had ruled that the employer was not bound to allocate luncheon vouchers to teleworking employees (TJ Nanterre, 10 mars 2021, No. 20/09616). On 30 March, the Court of justice of Paris rendered the exact opposite decision, specifying that: “pursuant to the terms of article L.1222-9 of the labor code, teleworking refers to any form of organization of the work carried out by an employee outside the employer’s premises which uses information and communication technologies, which does not entail for the employee to be at home or to have a personal space to prepare their lunch”. It goes on saying: “the purpose of a luncheon voucher is to allow an employee to eat when their working time includes a meal, whether or not they have a personal space to prepare it”. The court concludes that: “Contrary to what is claimed by the employer, the conditions of use of luncheon vouchers are fully compatible with the carrying out of duties through teleworking since their guiding principle is to allow employees to eat when their working time includes a meal, and that in this respect teleworkers are in a situation equivalent to that of employees working on-site”. Incidentally, the Court of justice of Paris mentions the ANI of 26 November 2020 which “does not contain any express mention as to meal taking for teleworking employees (which) would not allow to conclude that an employer has no obligation to allocate luncheon vouchers to teleworking employees”. The court also refers to a Q&A published on the Ministry of Labour’s website regarding the issue of “Teleworking in times of COVID ”, in which it is indicated: “when employees carrying out their activity in the company’s premises benefit from luncheon vouchers, teleworkers shall also receive some if their working conditions are equivalent” (TJ Paris, 30 March 2021, No. 20/09805).
DISCRIMINATION: Absence of a neutrality clause in the internal rules.
In this case, an employee reported for work with a scarf concealing her hair, ears and neck. The employer asked her to take off her scarf and following the employee’s refusal to do so, exempted the latter from activity, then dismissed her for real and serious cause. On 14 April 2021, the French Supreme Court (Cour de cassation) agreed with the Court of appeal of Toulouse for having ruled that the dismissal was discriminatory. It first states as a reminder that internal rules may provide for a neutrality clause “banning any visible political, philosophical or religious sign in the workplace, provided said general and undifferentiated clause is applied only to employees who are in contact with clients”. In the absence of such a clause in the internal rules, which was the case in this matter, restrictions to religious freedom are possible only if there exists an “essential and decisive professional requirement” in the meaning of article 4.1 of the directive 2000/78/CE of 27 November 2000. Yet, for the Cour de cassation, the trial judges rightly considered that such essential and decisive professional requirement was not constituted by “(…) the customers’ alleged expectations as to the saleswomen’s physical appearance in the retail sale of clothing (…)” (Cass. Soc., 14 April 2021, No. 19-24.079).
VARIABLE REMUNERATION: Modification of the objectives.
When an employment contract provides for a variable remuneration based on objectives, these may be defined unilaterally by the employer. They are likely to be then modified on the latter’s initiative on the double condition that the new objectives are achievable and made known to the employee at the beginning of the financial year. It is this second condition that the Cour de cassation states here as a reminder: “(…) if the employer may modify the annual objectives as part of his management powers, it is up to him to do so at the beginning of the financial year, not while they are being accomplished and he becomes aware of their level of accomplishment (…) the employer could, at the end of the financial year, neither unilaterally modify the calculation method nor unilaterally reduce the amount of the premium (…)” (Cass. Soc., 8 April 2021, No. 19-15.432).
COVID 19: Days of rest imposed by an employer.
An industrial group had imposed on its employees who could not telework the taking of 10 days of leave pursuant to the provisions of articles 2 and 4 of the order No. 2020-323 of 25 March 2020 establishing emergency measures regarding paid leave, work duration and days of rest. An action for the annulment of the imposed days of rest was initiated as part of emergency interim proceedings before the Court of justice of Paris by a trade union. The latter, whose claim was dismissed in the first instance, appealed to the Court of appeal of Paris, which considered that this employer could not impose days of rest on his employees pursuant to the provisions of the above mentioned order since this text “expressly and clearly provides that the taking of exemption measures can occur only when the company’s interest justifies it in the light of the economic difficulties related to the spreading of the covid 19; That it is up to the companies of the Group (…) to provide the proof of the economic difficulties related to the spreading of the covid 19, which they do not, as the adjustment measures adduced therefrom do not establish them” (CA Paris, 1 April 2021, No. 20/12215).
An employee had contested a disciplinary downgrading though he had expressly accepted it by signing the corresponding amendment to the employment contract. The Highest court nevertheless considered that the trial judges had to check “the reality of the facts alleged by the employer, their wrongful nature and the proportionality between the decided sanction and the misconduct the employee is reproached for” (Cass. Soc. ,14 April 2021, No. 19-12.180).
SOCIAL AND ECONOMIC COMMITTEE: The CSE has no legal representative.
The Highest court states as a reminder that the secretary and assistant secretary of the CSE are not legal representatives: “when the voluntary involvement of the social and economic committee did not mention that the committee was represented by its secretary and assistant secretary, neither the secretary of the social and economic committee nor the assistant secretary are its legal representatives,
it is up to the social and economic committee to justify that it had expressly appointed one of its members to legally represent it (…)” (Cass. Soc., 31 March 2021, No. 19-23.654).