NewsletterNewsletter No. 151 – July 2021
TERMINATION OF AN EMPLOYMENT CONTRACT: Mission of the judge regarding a request for judicial termination.
An employee, on sick leave since 2012, brought a request before the labor court for judicial termination of her employment contract, based in particular on the absence of a notice to attend a medical examination of pre-return to work, as well as acts of harassment. The trial judges rejected her request, dismissing certain facts which were time-barred, in particular those relating to the breach of the security obligation. The French Supreme Court (Cour de cassation) quashed the decision of the court of appeal, considering “that it was up to it to examine all the grievances raised by the employee in support of her request for judicial termination“. The trial judges were therefore not in a position to refuse to review certain grievances on the basis of how far they went back (Cass. Soc. 30 June 2021, No. 19-18.533).
FUNDAMENTAL FREEDOMS: Freedom of religion and dismissal.
Article 23 of the law of 15 July 1845 on railway police provides for the swearing-in of the permanent RATP officers. An employee having refused to take the oath provided for by the law, because of her religious convictions, the RATP dismissed her for misconduct. According to the Cour de cassation, “the employee had not committed any fault in requesting, during the oath-taking hearing, the possibility of substituting for the formula ”I swear” that of a solemn commitment, from which it resulted that the dismissal, pronounced for fault on the grounds of her refusal to take an oath and the consequent impossibility of obtaining her oath, if it was not null as not having been pronounced by the employer because of the employee’s religious convictions, was without real and serious cause” (Cass. Soc. 7 July 2021, No. 20-16.206).
WORKING TIME: Modification of working hours and employment contract.
Following a merger operation, employees entered into an amendment to their employment contract placing them temporarily on shift hours. The employees concerned then contested their return to the collective schedule, decided by the employer in accordance with the terms set out in a collective agreement. According to the Cour de cassation, “the court of appeal noted that the agreement on shift work of 24 October 1997 had provided that the employees retained would be chosen from among the volunteers and that an amendment to their employment contract for the duration of this specific adjustment would be established, and noted that the amendments concluded by the employees did not provide, contrary to the terms of the agreement, the duration of this adjustment and mentioned that they would end on the date set by the hierarchy depending on the needs of the service. It was able to deduce therefrom that the shift working hours were of a contractual nature and that the end date mentioned was not binding upon the employees, so that the modification of the employees’ working hours constituted a modification of their employment contract that they were entitled to refuse” (Cass. Soc. 30 June 2021, No. 20-15.456).
EMPLOYMENT CONTRACT: Assessment of the validity of the duration of a trial period.
An employee, whose employment contract provided for a six-month trial period, contested the termination of said period. Referring to the ILO Convention No. 158 about dismissal, the trial judges considered that this termination amounted to a dismissal without real and serious cause, due to the unreasonable duration of the trial period. For the Cour de cassation, a six-month trial period is not necessarily unreasonable. Indeed, it considers that “to say that the termination of the employment contract is analyzed as a dismissal without real and serious cause, and to order the employer to pay various sums, the decision holds that it is unreasonable, based on Convention No. 158 of the International Labor Organization and with regard to the purpose of a trial period which shall allow the employee to assess whether the duties performed by him/her suit him/her and the non-application of the dismissal rules during this period, a trial period with a six-month duration. By ruling this way, with a general statement, without examining, with regard to the category of employment held, whether the total duration of the trial period provided for in the employment contract was unreasonable, the court of appeal deprived its decision of legal basis” (Cass. Soc. 7 July 2021, No. 19-22.922).
MATERNITY: Consequence of the absence of an interview on return from leave.
Upon being asked whether an employer’s failure to fulfill its obligation to offer an employee a professional interview on her return from maternity leave entailed the nullity of the dismissal, the Cour de cassation specified that “the lack of organization of the interview provided for by article L. 1225-27 of the [labor code] could be, in itself, a cause for the nullity of a subsequent dismissal” (Cass. Soc. 7 July 2021, opinion No. 15010).
TEMPORARY EMPLOYMENT: Starting point of the limitation period for an action aiming at converting an assignment contract.
The Cour de cassation specifies that “the limitation period for an action to convert an assignment contract with regard to the user company into a permanent contract based on the reason for using the assignment contract set out in the contract starts at the end of the contract or, in the case of a succession of assignment contracts, the end of the last contract” (Cass. Soc. 30 June 2021, No. 19-16.655).
REMUNERATION: Social security scheme applying to the gain following the exercise of a stock purchase option.
A senior executive employee exercised the option to purchase shares in the company that employed him. The tax administration taxed the sum resulting from this operation under the category of salaries and wages. For the first time, the French Administrative Supreme Court specifies that the gain in exercising the option shall be assimilated to a salary when it “derives essentially from the exercise by the person concerned of their duties as an employee” and when the option to purchase is linked to the employment contract (CE, 13 July 2021, No. 428506).
FUNDAMENTAL FREEDOMS: Application of the principle of neutrality within companies.
A German company banned its employees from wearing in the workplace any visible sign of a political, philosophical or religious nature. Upon being submitted a preliminary question on this issue, the CJEU specified that “a company’s internal rule, prohibiting the workers to wear any visible sign of political, philosophical or religious convictions in the workplace, does not constitute, with regard to workers who observe certain clothing rules in application of religious precepts, a direct discrimination based on religion or on convictions, within the meaning of this directive, if this rule is applied in a general and undifferentiated manner” (CJEU, 15 July 2021, No. C-804/18).
REMUNERATION: Amending finance law 2021.
The extraordinary purchasing power bonus (PEPA) shall be extended until 31 March 2022 (Law No. 2021-953 of 19 July 2021, Official Journal of 20 July).