NewsletterNewsletter No. 150 – June 2021

PRIVATE LIFE: Video surveillance system.

An employee, a cook in a pizzeria, was dismissed for serious misconduct. The employer intended to prove the alleged facts using images obtained by a video surveillance system. To prove the employer wrong, the French Supreme Court (Cour de cassation), in a decision of 23 June 2021, took the perspective of the proportionality of the system with regard to the aim: “the Court of Appeal found that the employee who exercised his activity alone in the kitchen was subject to the constant surveillance of the camera installed there. It rightly deduced therefrom that the recordings resulting from this surveillance system, which was detrimental to the employee’s personal life and disproportionate to the aim alleged by the employer of safety of persons and property, were not enforceable against the employee and, by these grounds alone, legally justified its decision” (Cass. Soc. 23 June 2021, No. 19-13.856).

DISCIPLINE: Request for disciplinary action during a professional interview.

During a professional interview with her superior followed by a report drawn up by the latter, listing several breaches, an employee was informed that her manager was asking for a sanction against her. The employee was then called for an interview prior to disciplinary action up to and including dismissal, and then dismissed for serious misconduct. The employee initiated a dispute, considering that she had been sanctioned twice for the same facts. The Court of Appeal ruled in her favor and considered the dismissal was without real and serious cause. But the Cour de Cassation, in a judgment of 27 May 2021 stated as a reminder that according to article L.1331-1 of the labour code: “any measure, other than verbal observations, taken by the employer following an employee’s act considered by the employer to be a wrongdoing, whether this measure is likely to affect immediately or not the employee’s presence in the company, his/her function, his/her career or his/her remuneration, shall constitute a sanction.” Yet,“by ruling in this way, while it resulted from his findings that the author of the report had expressly indicated that he was limiting himself to requesting a sanction, the decision falling exclusively on the management and the person in charge of human resources, the Court of Appeal violated the aforementioned text” (Cass. Soc. 27 May 2021, No. 19-15.507).

SOCIAL AND ECONOMIC COMMITTEE (CSE): Determination of the number of distinct establishments.

On 9 June 2021, the Cour de Cassation delivered two judgements concerning the fixing by an employer’s unilateral decision of the number and scope of distinct establishments for the setting up of the CSE. In each of these cases, the employer’s fixing of the number of distinct establishments had been contested by the unions and annulled by the Direccte (now Dreets). The administrative decisions were challenged before the court of justice. The Cour de Cassation quashed both decisions based on articles L 2313-4 and L 2313-5 of the labour code, reproaching the trial judges for not having concretely verified “(…) with regard to the elements produced by both the employer and the trade unions, if the managers of the establishments concerned actually had sufficient decision-making autonomy with regard to personnel management and the performance of the service and if the recognition at this level of distinct establishments for the setting up of social and economic committees was such as to allow the effective exercise of the prerogatives of the staff representative body (…)”

(Cass. Soc. 9 June 2021 No. 19-23.153 and Cass. Soc. 9 June 2021, No. 19-23.745).

DISCIPLINE: Starting point of the period for adopting a new sanction.

The period available to an employer to sanction wrongdoings is two months. When a disciplinary sanction modifies the employment contract, the employee can refuse it. In this case, the employer can impose a new sanction. He shall then start the disciplinary procedure again, and shall have a further two-month period. In a decision of 27 May 2021, the Cour de Cassation clarified the starting point of this new period. In this case, the employer had notified the employee of a disciplinary transfer on 2 May 2013 and had given him until 10 May to accept or refuse it, specifying that the absence of a response within this period would constitute refusal. The employee expressed his refusal on 18 May, 8 days after the end of the reflection period. On 16 July, the employer called the employee for a preliminary interview with a view to a new disciplinary sanction. The Cour de Cassation ruled that the employer had exceeded the two-month period, because the starting point of the new period for initiating the disciplinary procedure was the period given to the employee to accept or refuse the first sanction (10 May) and not the date of his refusal expressed after this period (May 18) (Cass. Soc. 27 May 2021, No. 19-17.587).

SETTLEMENT AGREEMENT: Validity of a settlement agreement concluded after a mutually agreed termination.

The Cour de Cassation states as a reminder that, to be valid, the settlement agreement must have been signed after the approval of the mutually agreed termination, and settle a dispute not relating to the termination of the employment contract: “the settlement agreement signed by the employee and the employer after the approval of the mutually agreed termination of the employment contract shall only be valid if its purpose is to settle a dispute relating not to the termination of the employment contract but to its performance on elements not included in the termination agreement” (Cass. Soc. 16 June 2021, No. 19-26.083).

UNFITNESS: The starting point of the fifteen-day period for contesting the opinion of unfitness.

The Cour de Cassation has just clarified that the starting point of the fifteen-day period for contesting a medical opinion of unfitness shall run from the receipt by the employer of this opinion, and not of elements of a medical nature justifying it (Cass. Soc. 2 June 2021, No. 19-24.061).

COVID-19: Fight against Covid-19.

As part of the management of the health crisis exit, a decree of 1 June 2021 prescribes general measures to deal with the Covid-19 epidemic (Decree No. 2021-699 of 1 June 2021, Official Journal of 2 June).

COVID-19: Professional interview.

The Ministry of Labour, Employment and Integration has updated its questions and answers on the professional interview. It specifies in particular that: 1 / The interviews initially planned for the year 2020 and for the first half of 2021 may take place until 30 June 2021. 2 / The sanctions that could be applied to companies in the event of not conducting these interviews (corrective contribution to the personal training account, CPF) shall be postponed until 30 September 2021. 3 / Contributions for current situation assessment interviews (every six years) shall be due only from 1 October if the employer’s obligations have not been met by that date. Employers therefore have the possibility to carry out these interviews until 30 September 2021 without incurring any penalty (Questions – answers of the Ministry of Labour, 21 June 2021 update).