NULLITY OF A DISMISSAL: Case law turnaround on the acquisition of paid leave during the eviction period.
In a decision of 1st December 2021, under the impetus of the case law of the Court of Justice of the European Court (CJEC), the French Supreme Court (Cour de cassation) revised its position in terms of compensation for a dismissal declared null, followed by a reinstatement. Indeed, until this decision, the French Supreme Court considered that the eviction indemnity compensated for all the damage suffered by the employee during the period between his dismissal and his reinstatement within the limit of the wages of which he had been deprived. He could not therefore acquire days of leave during this period. The Cour de Cassation now considers that “the period between the date of the illegal dismissal and the date of reinstatement of the worker in their position, in accordance with national law, following the annulment of this dismissal by a judicial decision, must equate to a period of actual work for the purposes of determining entitlement to paid leave”, except when the employee held another position during this period (Cass. soc., 1st Dec. 2021, No. 19-24.766).
Dismissal of a protected employee: Proof of wrongdoing: bailiff’s report versus attestations.
In a decision of 8 December 2021, the French Administrative Supreme Court (Conseil d’Etat) clarified the probative value of a bailiff’s report. In this case, a protected employee was accused of having participated in incidents during the counting of a professional ballot. A bailiff, present on the scene, had drawn up a report showing his involvement in the facts. The protected employee, for his part, had produced contrary attestations. On 20 November 2017, the Minister of Labor overturned the Labor Inspector’s decision to refuse to grant the dismissal and, therefore, authorized it. The employee then appealed on the grounds of ultra vires before the administrative court. He won his case before the Administrative Court of Appeal. The latter, after having compared the bailiff’s report with the contrary attestations produced by the employee, considered that a doubt remained as to the employee’s participation in the disputed events, and that this doubt should benefit him. But the Conseil d’Etat does not follow this reasoning. It states as a reminder that “in the event that the request (to authorize the dismissal of a protected employee) is motivated by a wrongful behavior, it is up to the labor inspector in charge and, where appropriate, to the competent minister, to seek, under the supervision of the judge in charge of ultra vires cases, whether the facts alleged against the employee are of sufficient gravity to justify his dismissal, taking into account all the rules applicable to his employment contract and the requirements specific to the normal performance of the mandate he is vested with.” Then, the Conseil d’Etat states as a reminder the legal provisions relating to a bailiff’s duties and their quality of ministerial officer. It concludes that the bailiff’s report shall prevail until proof to the contrary, which is not brought by the employees’ attestations (Conseil d’Etat, 8 Dec. 2021, No. 439631).
ADDITIONAL UNION REPRESENTATIVE: What date should be taken into account in order to calculate the workforce?
Article L 2143-4 of the labor code provides: “In companies with at least five hundred employees, any representative union in the company may appoint an additional union representative if it has obtained one or more elected representatives among the college of workers and employees during the election of the social and economic committee and if it has at least one elected representative in one of the other two colleges (…)” The Cour de Cassation has just clarified, referring to the aforementioned article, that the condition of a workforce of 500 employees entitling to the appointment of an additional union representative shall be assessed on the date of the last elections to the CSE. It shall then remain throughout the duration of the electoral cycle (Cass. soc. 8 Dec. 2021, No. 20-17.688).
PART-TIME WORK: Reminder concerning the distribution of working time in the employment contract.
The Cour de Cassation reaffirms that it is not possible to derogate from the obligation to specify, in the employment contract of an employee working part-time, the distribution of the working time between the days of the week or the weeks of the month. These public policy provisions are currently provided for at Article L 3123-6 of the Labor Code. (Cass. soc. , 17 Nov. No. 20-10.734).
PROFESSIONAL ELECTIONS: Clarification on the possibility of contesting a pre-election agreement.
The pre-election agreement meeting the conditions provided for at Article L 2314-6 of the labor code can only be challenged before a judicial judge if it contains provisions contrary to public policy, in particular relating to the general principles of electoral law. However, the Cour de Cassation specifies that “a trade union, which either signed such an agreement, or presented candidates without expressing any reservations, could not, after proclamation of the results of the professional elections, contest the validity of the pre-election agreement and request the cancellation of the elections, even if it invoked a failure by the pre-election agreement to observe rules of public policy”( Cass. soc., 24 Nov. 2021, No. 20-20.962).
MOBILITY PASS: Publication of the implementation decree.
The decree allowing the effective implementation of the mobility pass provided for by the mobility guidance law of 24 December 2019, shall come into force as from 1st January 2022 (Decree No. 2021-1663 of 16 Dec. 2021).
MUTUALLY AGREED TERMINATION: Generalization of the teletransmission procedure.
Pursuant to the decree of 13 December 2021, the application for approval of the termination agreement provided for at Article L 1237-14 of the Labor Code by teleservice is made compulsory from 1st April 2022. However, the deposit may still be made by mail using a form, if the employer or employee indicates that they are not able to use teleservice (Decree of 13 Dec. 2021 No. 2021-1639).
INFLATION ALLOWANCE: Publication of the decree.
Decree No. 2021-1623 of 11 Decembre 2021 sets the practical terms for the payment of the inflation allowance that employers must pay during November 2021 and no later than 28 February 2022. This decree is commented on in a “Q&A” published in the Official Social Security Bulletin (BOSS).
TELEWORK: Updated health protocol.
On 8 December 2021, the Ministry of Labor updated the health protocol to take into account the fifth wave of Covid-19 with the Omicron variant. Employers should aim for two to three days of telework per week, subject to constraints related to work organization and to the employees’ situation. The updated protocol also provides that “moments of conviviality bringing together employees face-to-face within the professional framework shall be suspended.” (Health protocol updated as of 8 December 2021)
- i.e., the social and economic committee. ↑