DISCIPLINE: Conditions for invoking a code of ethics.
The employee of an investment company contested his dismissal, notably because the code ethics set up by his employer had not been attached to the internal rules. After having stated as a reminder that “pursuant to the provisions of article L. 1321-5 of the labor code, memoranda or any other document including general and permanent obligations in the matters mentioned at articles L. 1321-1 and L. 1321-2 are, when internal rules exist, considered as additions to the latter”, the French Supreme Court (Cour de cassation) decides that “such a document, if it has been subject to the staff representative bodies’ opinion, has been communicated to the labor inspector and has been submitted to the filing and publicity requirements provided for by the texts relating to internal rules, constitutes an addition to the latter, and is binding upon the employee on the date of its entry into force” (Cass. Soc. 5 May 2021, No. 19-25.699).
PROFESSIONAL ELECTIONS: Clarification relating to electoral litigation.
Article R. 2314-24 of the Labor code provides that “when a contestation relates to the regularity of an election or to the appointment of trade union representatives, the petition is admissible only if it is submitted or addressed within 15 days of said election or appointment”. In this case, a trade union had requested, in the same petition, the cancellation of the electoral agreement and of the elections, prior to holding the latter. The trial judges had declared this petition inadmissible, since it was prior to the holding of the elections. The Cour de cassation specifies, for the first time, that “the trade union […] which requested the cancellation of the pre-election agreement was entitled to request, in the same declaration, the cancellation of the elections to be held pursuant to this agreement without having to repeat said request after the elections” (Cass. Soc. 12 May 2021, No. 19-23.428).
EMPLOYMENT CONTRACT TERMINATION: Reminder regarding the amount of compensation paid as part of a mutually agreed termination.
An employee reproached his employer for having paid him, as part of the mutually agreed termination of his employment contract, compensation calculated by reference to the legal severance pay. The Cour de cassation states as a reminder that, if the collective agreement applicable within the group or enterprise provides for a severance pay which is more favorable than the legal one, an employee may “lay claim to specific termination compensation whose amount cannot be less than the severance pay provided for in the collective agreement” (Cass. Soc. 5 May 2021, No. 19-24.650).
UNFITNESS: Clarification relating to the resumption of salary payments.
Pursuant to article L. 1226-4 para. 1 of the Labor code, « when, upon expiry of a one-month period as from the date of the medical examination of return to work, an employee who is declared unfit for work is not redeployed within the enterprise or if they are not dismissed, the employer shall pay them, upon expiry of this period, the salary corresponding to the position the latter occupied prior to the suspension of their employment contract”. The Highest jurisdiction here adds that “the salary corresponding to the position the employee occupied prior to the suspension of their employment contract, and the payment of which the employer is bound to pursuant to article L. 1226-4 of the labor code, includes all the elements constituting the remuneration, notably the thirteenth month’s salary, which he would have received if he had worked” (Cass. Soc. 5 May 2021, No. 19-22.456).
EQUAL TREATMENT: Applicability of the principle in connection with a settlement agreement.
After switching from a night shift position to a day shift position, a company had entered into a settlement agreement with several employees which provided for the payment of compensation provided for in the PSE. Other employees, placed in the same situation, referred their case to the labor court to notably request the payment of damages for unequal treatment. Contrary to the trial judges, the Cour de cassation considers that « an employee cannot invoke the principle of equal treatment to demand rights and benefits of a settlement agreement entered into with other employees to put an end to a dispute or prevent a future dispute” (Cass. Soc. 12 May, No. 20-10.796).
STAFF REPRESENTATIVES: Annulment of the texts relating to the adjustment of consultation periods during the pandemic.
By order of 2 May 2020, the Government temporarily adapted the periods applicable to the consultation and information of the CSE, shortening them. According to the French Administrative Supreme Court (Conseil d’Etat), appealed to on the grounds of ultra vires, none of the provisions of the law of 23 March 2020 authorizing the Government to take various measures by issuing orders, authorized it to shorten the periods of information and consultation of economic and social committees, or the periods applicable to the carrying out of experts’ assessments decided in connection with these procedures by the committees. The Conseil d’Etat thus annulled article 9 of the order No. 2020-460 of 22 April 2020, in its version resulting from the order No. 2020-507 of 2 May 2020, and the decree No. 2020-508 of 2 May 2020 (CE 19 May 2021, No. 441031).
COVID-19: Procedure for recognizing the Coronavirus as occupational disease.
The decree referred to below provides some adjustment to the procedure of recognition of occupational accidents and diseases by abolishing in particular the adversarial procedure between the victim and the employer, not applicable to self-employed workers, and by adjusting accordingly the claim investigation period. It defines the pension calculation basis for liberal health professionals who also carry out an employed activity. Finally it determines the regional committee for the recognition of occupational diseases which shall have jurisdiction in the event a decision of the fund on the recognition of the occupational origin of the pathology is contested (D. No. 2021-554 of 5 May 2021, Official Journal of 6 May).
PATERNITY LEAVE: Extension of and obligation to take part of the leave.
The decree referred to below fixes the periods for an employee benefitting from a paternity leave to inform the employer, provides details as to the possibilities to divide the taking of the non-compulsory part of the leave and sets the period for taking said leave at six months following the child’s birth. It also sets the minimum and maximum durations of this leave for self-employed workers and non-employed persons in agricultural occupations, namely respectively seven and twenty-five or thirty-two days. These provisions apply to children born as from 1 July 2021 and to those born before this date but whose birth was to occur as from this date (D. No. 2021-574 of 10 May 2021, Official Journal of 12 May).