NewsletterNewsletter No. 157 – January 2022
CSE (Social and Economic Committee): Possible consultation of the CSE about a plan to dismiss one of its members in companies with less than 50 employees.
In its opinion of 29 December 2021, the French Administrative Supreme Court (Conseil d’Etat) specifies that “in companies comprising between eleven and forty-nine employees, the social and economic committee does not need to be consulted on the proposed dismissal of an elected member of the staff delegation of the social and economic committee, full or alternate, or of a union representative on the social and economic committee or of a local representative of the social and economic committee, unless such consultation has been provided for by a collective agreement concluded pursuant to Article L 2312-4,” and “that in companies comprising at least fifty employees, such consultation is required in all cases” (CE, opinion No. 453069 of 29 Dec. 2021).
MATERNITY: Details on the period of absolute protection against dismissal.
During maternity leave and during paid leave taken immediately after, no dismissal can take effect or be notified; such protection being absolute. Before maternity leave and during the ten weeks following childbirth, the employee benefits from relative protection: she may be dismissed only for serious misconduct unrelated to her state of pregnancy, or in case of an impossibility to maintain the employment contract for a reason unrelated to pregnancy or childbirth. In this case, the employee’s maternity leave had ended on 17 December 2016. She had then been put on sick leave with no relation with a pathology related to her pregnancy. The employer had dismissed her for serious misconduct on 20 January 2017. The Court of Appeal had ruled the dismissal void, considering that the ten-week protection period had been postponed by the leave from work for illness. But, pursuant to Article L 1225-4 of the Labor Code, the French Supreme Court (Cour de cassation) decides, on the contrary, that the sick leave does not have the effect of postponing the starting point of the 10-week relative protection period: “by deciding this way when it had noted that the maternity leave had ended on 17 December 2016, so that the employer was able to terminate the employment contract if he justified a serious fault on the part of the concerned employee unrelated to her state of pregnancy, and that it was consequently up to her to seek, as she was asked to, whether the dismissal was justified by such a fault, the Court of Appeal violated the aforementioned text” (Cass. Soc., 1 Dec. 2021, No. 20-13.339).
REMUNERATION BASED ON THE NUMBER OF DAYS WORKED (FORFAIT-JOURS): Details on the consequences of non-performance of the conventional guarantees.
A trade union had applied to the court of first instance (current court of justice) for the purpose of having an agreement for the development of employment by the negotiated reduction and adjustment of working time concerning management staff declared null and void. The union also requested the declaration of the nullity of the individual forfait-jours agreements concluded in its application, arguing that this text did not respect the employees’ right to health and safety. For the appeal judges, the collective agreement was valid, but due to the employer’s non-performance of the clauses relating to the control of the workload and the amplitude of work, they declared the agreement as not binding upon the employees for the period prior to 2015. However, for the Cour de Cassation, if a trade union may, in the name of the defense of the collective interest, obtain a finding that the collective agreement is insufficiently protective or compel the employer to comply with the contractual obligations of the agreement, he does not have the capacity to request that the non-binding nature of the concerned employees’ individual agreements be declared: “(…) non-compliance by the employer with the clauses of the collective agreement intended to ensure the protection of the safety and health of the employees who are subject to the forfait-jours regime does not entail its non-binding effect on employees, but the deprivation of effect of the individual agreements concluded pursuant to this agreement (…)” It is thus up to each employee to bring, on the basis of a collective action, an individual action and to justify the invoked rights (Cass. Soc., 15 Dec. 2021, No. 19-18.226).
COMPANY AGREEMENT: Disputes regarding the validation by referendum of a minority agreement.
In a decision of 5 January 2022, the Cour de Cassation states as a reminder that the referendum to validate a minority collective agreement is open to all employees, including employees on fixed-term contracts who would not be able to benefit from said agreement. The Highest Court also brings clarification regarding the admissibility of disputes relating to the list of employees to be consulted and the regularity of the consultation. This appeal must be brought before the court of justice within 15 days following the consultation of the employees (article R. 2314-4 of the Labor Code). As soon as the dispute is brought before the court within this period, it shall be admissible, and it matters not, as is specified by the Cour de Cassation, that “the content of the agreements is also disputed or that some of its clauses have already been implemented (…)” (Cass. Soc. 5 Jan., No. 20-60-270).
PROFESSIONAL INTERVIEWS: Publication of the decree on the sanctions related to the non-carrying out of summary professional interviews.
For companies with at least 50 employees, when an employee has not benefited during the last six years from professional interviews or mandatory training, a sum of 3,000 euros shall be paid into his training account. The decree of 30 December 2021 specifies in particular that this corrective contribution shall be paid before 31 March 2022 for the summary interviews which were to be carried out in 2020 and 2021 (D. No. 2021-1916 of 30 Dec. 2021, Official Journal of 31 Dec.).
COVID-19: Telework.
As of 2 February, the use of teleworking (currently set at 3 days per week for employees whose missions allow it) shall merely be recommended by the Government. Employers shall set, as part of the local social dialogue, the terms and conditions for the use of teleworking “by ensuring that cohesion is maintained among the workers and by ensuring the prevention of risks related to the isolation of teleworking employees” (Health Protocol of 25 Jan. 2022).
COVID-19: Law relating to the vaccination pass and the administrative fine for dangerous situations.
The law of 22 January transforms the health pass into a vaccination pass from 24 January 2022 and until 31 July 2022, in places where leisure activities are carried out, for commercial catering activities or drinking establishments, fairs, seminars and trade shows, travel on interregional public transport, shopping centers or department stores. Employees working in these places are concerned by this requirement. In addition, the law allows the administrative authority, on the basis of a report from the labor inspectorate, to sanction an employer who, because of his non-compliance with the general principles of prevention, has caused a dangerous situation resulting from a risk of exposure to Covid-19. This fine is set at 500 euros per employee and capped at 50,000 euros. It shall be imposed if, at the end of the formal notice period, the labor inspectorate control officer finds that the dangerous situation has not ceased (Law No. 2022-46 of 22 Jan. 2022 and D. No. 2022-51 of 22 Jan. 2022, Official Journal of 23 Jan.).