NewsletterNewsletter No. 155 – November 2021

VIDEO SURVEILLANCE: Clarification of the mandatory prior formalities.

The employee of a pharmacy was dismissed for serious misconduct after having entered into a computer a quantity of products smaller than that actually sold or sold products at a lower price than the price or without registering them. To prove these facts, the employer particularly relied on video surveillance recordings. The Court of Appeal considered that the dismissal was based on serious misconduct and that the video surveillance system was lawful, because the employees had been informed of its existence. However, the French Supreme Court (Cour de cassation) quashed this decision, on the grounds that the works council had not been consulted on the use of the video surveillance device for the purpose of controlling and monitoring the employees’ activity, so that this means of proof taken from the employee’s recordings was illicit (Cass. Soc., 10 Nov. 2021, 20-12.263).

VARIABLE REMUNERATION: Impact of the failure to set objectives.

An employee, whose contract had been terminated, contested his dismissal and notably demanded the payment of his annual variable remuneration, which was paid according to the achievement of sales targets. According to the Cour de Cassation, “the Court of Appeal, which found that the employer had failed in their contractual obligation to initiate consultation each year with the employee with a view to setting the objectives on which the variable part of the remuneration depended, rightly decided, without disregarding their duty, that the contractually provided variable remuneration had to be paid in full for each financial year” (Cass. Soc., 4 Nov. 2021, No. 19-21.005).

EMPLOYMENT CONTRACT TERMINATION: Clarification of the sanction in the case of unjustified dismissal during a sick leave.

In principle, when an employee is dismissed during a sick leave of non-occupational origin and they are not able to work during their notice period, such work is not paid to them. In this case, the dismissal had been ordered for prolonged absence disrupting the company and making it necessary to permanently replace the concerned person. The Court of Appeal, after finding that the existence of a disorganization of an essential service of the company was not established by the employer, concluded that the dismissal was without real and serious cause. The Cour de Cassation agrees with the Court of Appeal for having ruled that “the employee was entitled to the payment of compensation in lieu of notice notwithstanding his sick leave during this period” (Cass. Soc. 17 Nov. 2021, No. 20-14-848).

UNFITNESS: Consequences of an unfit employee being kept in a prolonged inactivity.

Article L.1226-4 paragraph 1 of the Labor Code provides that “when, at the end of a period of one month from the date of the medical examination of return to work, the employee declared unfit is not reinstated in the company or if they are not dismissed, the employer pays them, upon expiry of this period, the salary corresponding to the position they were holding before the suspension of their employment contract “. However, the law does not impose any time limit for dismissing or reinstating an employee declared unfit. In this case, the Cour de Cassation agreed with the Court of Appeal for having ruled that the deliberate keeping of the employee “in a situation of forced activity within the company without any possible development” “constituted a sufficiently serious breach justifying a judicial termination of the employment contract at the employer’s expense” (Cass. Soc., 4 Nov. 2021, No. 19-18.908).

EMPLOYMENT CONTRACT TERMINATION: Clarification of the circumstances surrounding contractual termination.

In terms of contractual termination, the Cour de Cassation has considered for several years “that in the absence of lack of consent, the existence of acts of moral harassment does not in itself affect the validity of the termination agreement” (Cass. Soc., 23 January 2019, No. 17-21.550). For the first time, the Cour de Cassation rules on the validity of a contractual termination in the event of the existence of acts of sexual harassment and agrees with the Court of Appeal for having declared the termination agreement null and void: “having noted that on the date of signing the contractual termination agreement, the employer, informed by the employee of specific and repeated facts of sexual harassment by her supervisor, had not implemented any measures likely to prevent new acts and to protect the employee from the revelations she had made so that she, being in a situation that had become unbearable and the effects of which could still get worse if it continued, had had no choice but to accept the termination and had not been able to give free and informed consent, the Court of Appeal, which highlighted the existence of moral violence, legally justified its decision” (Cass. Soc., 4 Nov. 2021, No. 20-16.550).

PROFESSIONAL ELECTIONS: The exclusion of certain employees from the electorate is unconstitutional.

Pursuant to the terms of Article L.2314-18 of the Labor Code, “employees of both sexes, over the age of sixteen, having worked for at least three months in the company and not concerned with any ban, deprivation or incapacity relating to their civic rights are eligible to vote”. According to the trade union which submitted the QPC^[1], these provisions violate “the principle of workers’ participation since, as interpreted by the Cour de Cassation, they deprive employees likely to be assimilated to the employer of the quality of voter in professional elections, and therefore of any representation on the social and economic committee”. The Constitutional Council, considering that “by depriving employees of any possibility of participating as a voter in the election of the social and economic committee, on the sole ground that they have such a delegation or such a power of representation, these provisions clearly disproportionately infringe the principle of workers’ participation”, declared them contrary to the Constitution. The repeal of Article L. 2314-18 of the Labor Code is however postponed until 31 October 2022 (CC, 19 Nov. 2021, No. 2021-947 QPC).

COVID-19: Extension of the mechanism of the derogatory leaves from work.

A decree of 8 January 2021 established the possibility, for employees placed in isolation because they have been in contact with someone who has Covid-19 or because they present a significant vulnerability, without the possibility of telework or partial activity, to benefit from a compensated leave from work under common law conditions. This mechanism, which was to apply until 30 September 2021, has been extended until 31 December 2021 (D. No. 2021-1412 of 29 Oct. 2021, Official Journal of 30 Oct.).

PARENTAL PRESENCE: Relaxation of the conditions for a leave renewal.

From now on, when the maximum number of 310 days of leave is reached during a 3-year period, the parents of children suffering from cancer or suffering from other pathologies requiring heavy care will be able in particular to extend it for the same period without waiting for the expiration of the 3-year period (L. No. 2021-1484 of 15 Nov. 2021, Official Journal of 16 Nov.).

1. A QPC is a “preliminary question of constitutionality”. ↑