VIDEO SURVEILLANCE: Legality of the evidence.
An employee was dismissed for serious misconduct, evidenced by a video surveillance recording showing that he had engaged in voyeuristic practices in the women’s restrooms. The employee contested his dismissal by invoking in particular the illicit nature of the evidence, since the video surveillance device had not been the subject of information in accordance with article L.1222-4 of the labor code, which states that “no information concerning an employee personally can be collected by a device that has not been previously brought to their attention”. The Court of appeal of Paris ruled in favor of the employee. But the French Supreme Court (Cour de Cassation) disagrees and reproaches the trial judges for not having verified whether the purpose of the monitoring system was to actually monitor the employee in the performance of their duties. In other words, even if the employer has not provided information to the employees, they can validly use images from a video surveillance system as evidence since the objective of the device is not to monitor the employees, but to ensure the safety of the premises (Cass.Soc. 22 Sept. 2021, 20-10.843).
DISCIPLINE: Clarification about the procedure applicable in the event of a warning.
In principle, an employer is not required to summon an employee to a pre-dismissal interview, when they intend to issue a warning or a similar sanction. Indeed, article L.1332-2 of the labor code provides: “when the employer intends to adopt a sanction, they summon the employee, specifying the purpose of the summons, unless the contemplated sanction is a warning or a sanction of the same nature having no impact, whether immediate or not, on the presence in the company, the function, the career or the remuneration of the employee (…) ” However, with regard to this article, the Cour de Cassation has already ruled that, when an internal regulation makes a dismissal subject to the prior adoption of two warnings, the employer must implement the classic disciplinary procedure (summons to a pre-dismissal interview) before adopting such a sanction, since the warning may have an influence on the employee’s retention in the company (Cass. Soc. 3 May 2011, No. 10-14.104). In two rulings of 22 September 2021, the Cour de Cassation transposes this solution to the provisions of a collective agreement. The High Jurisdiction indeed considers that an employer is required to summon the employee to a pre-dismissal interview before notifying them of a warning when, in light of the provisions of a collective agreement, the sanction may have an influence on the employee’s retention in the company. Such is the case when the collective agreement establishes a substantive guarantee by making the dismissal conditional on the existence of two previous sanctions (Cass. Soc. 22 Sept. 2021, No. 18-22.204 and Cass. Soc. 22 Sept. 2021, No. 19-12.538).
TELEWORKING: Compensation provided for by a collective agreement.
A teleworking agreement concluded before the pandemic provided for the payment of compensation of five euros per day for the benefit of employees whose regular teleworking was formalized by an amendment. The agreement also provided for the possibility of teleworking on an occasional basis, up to a limit of 40 days per year, without an amendment nor compensation. As of 16 March 2020, in accordance with government regulations, almost all the employees at the headquarters of the concerned company have been placed in 100% teleworking due to the health crisis. The employer has not paid the compensation provided for by the collective agreement to these employees placed in teleworking without an amendment. However, they had received a net compensation of 200 euros in November 2020. The Court of Justice of Paris has just ruled that the principle of equal treatment conflicts with the compensation being maintained only for the benefit of employees already benefitting from an amendment relating to regular teleworking. It therefore ordered the payment to all the employees of the compensation of five euros per teleworked day, considering that it did not matter whether the employees signed the amendment or not. (TJ Paris, 28 September 2021, No. 21/06097).
BONUS ON OBJECTIVES: Condition of presence.
An employee, hired in June 2019 as business development manager, was dismissed in October 2010. Her employment contract provided for variable compensation subject to presence in the company beyond 31 December of the reference year. Her dismissal having taken place in October 2010, the employer considered that this bonus was not due under the condition of presence. But the Cour de Cassation does not have the same position. Referring to Article L.1134 of the Civil Code, it indeed states as a reminder that “if the entitlement to an element of remuneration relating to a period worked may be subject to a condition of presence on the date of its expiry, the right to remuneration, which is acquired when this period has been fully worked, cannot be subject to a condition of presence on the date subsequent to its payment.” Yet “the disputed bonuses constituted the variable part of the remuneration paid to the employee in return for her activity, so that they were acquired in proportion to her time in the company during the financial year” (Cass. Soc. 29 Sept. 2021, No. 13-25.549).
PAID LEAVE: Employer’s diligence.
After the termination of his employment contract, an employee claimed payment for days of paid leave which he claimed he did not benefit from. His employer put forward as proof the pay slip for the period in question on which the mention of paid lead appeared. The employee, a sports instructor, was able to provide proof that he was present at the stadium during this period. This case gave the Cour de Cassation the opportunity to state as a reminder that an employer cannot limit themselves to showing that they have paid the leaves, they must be able to prove that they have taken measures to ensure that the employee actually takes them, the burden of this demonstration falling to them: “it is up to the employer to take the appropriate measures to ensure the employee has the opportunity to effectively exercise their right to leave, and, in the event of a dispute, to justify that to this end they have taken all the steps which legally fall to them” (Cass. soc. 29 Sept. 2021, No. 19-19.223).
REMUNERATION BASED ON THE NUMBER OF DAYS WORKED (FORFAIT JOURS): Conditions of validity of the collective agreement establishing it.
The Cour de Cassation rules that the forfait clause of the Crédit Agricole national collective agreement is null and void. It indeed considers that the stipulations of the clause establishing it are insufficient to guarantee that reasonable working hours are observed. According to it, the provisions of this agreement which “are limited to providing that the number of days worked in the year is at most 205 days, taking into account a right to full paid leave, that control on days worked and rest days is carried out as part of an annual review defined in this agreement and that a weekly follow-up checks compliance with the legal and contractual rules concerning them in terms of working time; in particular the eleven hours of daily rest, without establishing effective and regular monitoring allowing the employer to adjust in due time a workload potentially incompatible with a reasonable duration, are not such as to guarantee that the amplitude and amount of work remain reasonable and ensure a good distribution, in time, of the concerned person’s work”. It deduces therefrom that “the forfait jours agreement was null and void” (Cass. Soc. 13 Oct. 2021, No. 19-20.531).