NewsletterNewsletter No. 158 – February 2022

REMUNERATION BASED ON THE NUMBER OF DAYS WORKED (FORFAIT-JOURS): Consequences on the RTTs^[1] of the cancellation of the forfait-jours agreement.

An employee had brought his case before the labor court regarding various claims in connection with the performance and termination of his employment contract. The Court of Appeal declared that the employee’s forfait-jours clause was null and void. It nevertheless dismissed the employer who, on the basis of the recovery of an undue payment (Article 1302 paragraph 1 of the civil code), claimed the reimbursement of the RTT days paid in application of this clause. The French Supreme Court (Cour de Cassation) disagreed with the Court of Appeal: “To dismiss the employer’s claim for the reimbursement of the granted RTT days, the judgment decides that the undue nature of the sums paid for the RTT has not been demonstrated since they remunerated rest days actually taken, which cannot lead to a reduction in the salary paid at the time, and that the extra hours granted do not take them into account. By ruling this way, while deciding that the forfait-jours agreement to which the employee was bound was void, so that the payment of the RTT days granted in performance of the agreement had become undue, the court of appeal violated the aforementioned texts” (Cass. Soc., 9 February 2022, No. 20-14.063).

WORKING TIME: Right to compensation in the event of the maximum working time being exceeded.

In the course of a single week, working time must not exceed 48 hours (Article L 3121-20 of the labor code). An employee who had worked 50 hours and 45 minutes during a week had requested damages for violation of the maximum working time. He was dismissed by the court of appeal, which reproached him for not providing proof of his prejudice. The Cour de Cassation disagreed and ruled that the employee did not have to justify his loss: “To dismiss the employee’s claim for damages for violation of the maximum working time, the decision, after noting that the employee had worked 50.45 hours during the week of 6 to 11 July 2015, states that he must demonstrate very exactly how these busy schedules have prejudiced him, and that based on the elements submitted, such prejudice has not been sufficiently demonstrated. By ruling this way, while the mere finding that the maximum working time has been exceeded gives rise to a right to compensation, the court of appeal violated the aforementioned text” (Cass. Soc., 26 January 2022, No. 20-21.636).

DISCIPLINARY LAW: Can an annual interview report containing reproaches constitute a disciplinary sanction?

During an annual interview, a manager had told an employee about his dissatisfaction on a certain number of points. This interview had given rise to a written report in which the manager formulated grievances and asked the employee to immediately change his attitude. The employee was then dismissed for serious misconduct due to the breaches which he had been reproached for during the annual interview. The Court of appeal of Besançon ruled that the interview report constituted a warning, so that the employer could not pronounce a disciplinary dismissal on these same facts. The Cour de Cassation agreed with him: “After noting that, in his interview report, the employer reproached the employee for his hard and closed attitude to changes, which led to a complaint from employees in pain, serious malfunctions related to electrical safety and non-compliance with regulatory standards, and invited him in an imperative and threatening manner and without delay to a complete and total change, the court of appeal rightly concluded that this document containing specific grievances sanctioned a behavior considered faulty and constituted a warning, so that the same facts could no longer justify a subsequent dismissal.” (Cass. Soc., 2 February 2022, No. 20-13.833).

EMPLOYMENT CONTRACT: Rest periods

A surveillance agent had brought his case before the labor court to request back pays corresponding to his waiting times. The employee indeed maintained that he could not freely go about his business during these periods, because he had to keep his service weapon on him, which implied constant attention, the employer not having made available to him the means to safely put it away. The Cour de Cassation did not follow him in his reasoning. After stating as a reminder that “the duration of the effective work is the time during which the employee is at the disposal of the employer and complies with his directives without being able to freely attend to personal affairs” (Article L 3121-1 of the labor code), the Cour de Cassation considered that “the retention by the employee of his service weapon during the duration of the daily rest period taken outside his normal employment area or his home did not have the effect of keeping him at the disposal of the employer between two services” (Cass. Soc., 9 February 2022, No. 20-21.541).

CONTRACTUAL MINIMUM: Details on the taking into account of the thirteenth month in the assessment of the contractual minimum.

A dispute concerned the terms and conditions for taking into account the annual thirteenth-month bonus to assess compliance with the minimum wage provided for by the applicable collective agreement. The employer had, for his part, smoothed this bonus over the year, while the employee considered, on the contrary, that the thirteenth month could only be taken into account for the month in which it was paid. The trial judges adopted the employee’s solution, and the Cour de Cassation approved this reasoning in the absence of any contractual provision to the contrary: “Having noted, with regard to the period from October 2006 to December 2013, during which the two collective agreements had applied successively, that the employee had received a remuneration lower than the conventional minimum wage to which she was entitled, except for certain months during which she had received the thirteenth-month bonus or the target bonus, the court of appeal made the right application of the conventional texts” (Cass. Soc., 12 January 2022, No. 20-12.542).

IMAGE RIGHTS: Details concerning the infringement of image rights.

Employees had been photographed with the whole team to appear on the company’s website. The latter had refused to remove the photograph despite the written request of several employees appearing on them. They then brought their case before the labor court claiming the payment of damages for infringement of image rights on the basis of Article 9 of the civil code. The court of appeal dismissed the employees’ claim, on the grounds that the employer had deleted the disputed photograph after communication of the first instance conclusions of the employees making this claim, and that the existence of a personal, direct and certain prejudice, resulting from the delay in removing the photograph in question, was not demonstrated. The Cour de Cassation quashed the appeal decision, because “the mere finding of the infringement of image rights” conferred “entitlement to compensation” to the employees without the latter having to demonstrate the existence of a prejudice (Cass. Soc., 19 January 2022, No. 20-12.420).

1. RTTs are days off. ↑