UNFITNESS: Starting point of the contestation period.
Article R. 4624-45 paragraph 1 of the Labor Code provides that “in the event of a dispute relating to the opinions, proposals, written conclusions or indications based on elements of a medical nature issued by the occupational doctor mentioned in Article L. 4624-7, a case shall be referred to the labor court […] within fifteen days of their notification. The appeal procedures as well as this deadline shall be indicated in the opinions and measures issued by the occupational doctor”. The French Supreme Court (Cour de Cassation) specifies that “in order to constitute the notification which starts the fifteen-day period to appeal against an opinion of fitness or unfitness, the hand-delivery of said opinion shall be made against signature or receipt” (Cass. Soc. 2 March 2022, No. 20-21.715).
CSE (Social and economic committee): Restriction of the use of experts’ assessments.
The social and economic committee of an establishment had decided to use an expert’s assessment for the consultation on the social policy of the company. The company requested the annulment of this decision, on the grounds that a company agreement provided that recurring consultations were carried out at the level of the central social and economic committee. According to the Highest Court, when, under a collective agreement, recurring consultations are the sole responsibility of the company’s central social and economic committee, the social and economic committee of an establishment may not appoint an expert in this respect (Cass. Soc. 9 March 2022, No. 20-19.974).
COLLECTIVE BARGAINING: Clarification on the level of negotiation of the employment safeguard scheme.
For the first time, the French Administrative Supreme Court (Conseil d’État) admits that the agreement determining the content of the employment safeguard scheme may be concluded at the level of the economic and social unit “even if the latter, which does not have legal personality, does not replace the legal entities which compose it” (CE, 2 March 2022, No. 438136).
HEALTH AND SAFETY: Conditions of the prohibition of alcohol consumption in the workplace.
The Conseil d’État specifies that, if an employer who considers it necessary to limit, or even prohibit, the consumption of alcohol in the workplace shall establish that this restriction is justified and proportionate, “this requirement does not imply […] that he must be able to put forward risks that have already occurred” (CE, 14 March 2022, No. 434343).
WORKING TIME: Annual remuneration based on the number of days worked (forfait-jours annuel) and employer’s safety obligation.
An employee reproached the trial judges for having dismissed his claim for damages for non-compliance with the safety obligation, even though they had condemned his employer for non-compliance with the legal conditions of implementation of the forfait-jours agreement. The Court of Appeal had, in fact, ruled that all the elements submitted to it showed behavior on the part of the employer in compliance with his safety obligation. Yet, for the Cour de Cassation, once it is found that the employer does not justify having taken the necessary measures likely to guarantee that the employee’s working hours and workload remained reasonable and ensured a good working time distribution, the employer necessarily fails in his safety obligation (Cass. Soc. 2 March 2022, No. 20-16.683).
COLLECTIVE BARGAINING: Possibility for the CSE to challenge a collective agreement.
According to article L. 2262-14 of the Labor Code, the action for nullity of all or part of a collective agreement must be initiated within two months from the notification of the agreement or its publication. In 2018, the Constitutional Council clarified that these provisions did not deprive employees of the possibility of challenging, without any time limit, by way of exception, the illegality of a clause in a collective agreement, as part of an individual dispute implementing it (CC. 21 March 2018, No. 2018-761 DC). For the first time, the Cour de Cassation admits that a social and economic committee may also challenge a company agreement by way of exception (Cass. Soc. 2 March 2022, No. 20-16.002).
EMPLOYMENT CONTRACT TERMINATION: Validity of a dismissal for professional incompetence pronounced after a refusal of downgrading.
An employee, director of general operations, was summoned in November 2016 to an interview prior to a disciplinary sanction. At the end of this interview, his employer offered him a position as director of sector operations, with a reduced monthly salary, which he refused. In December 2016, his employer therefore summoned him to a new preliminary interview, before dismissing him for professional incompetence. According to the trial judges, this dismissal was devoid of real and serious cause since, prior to the letter of dismissal putting forward the employee’s professional incompetence, the employer had initiated a disciplinary downgrading procedure. The Cour de Cassation considers that it results from article L. 1232-6 of the Labor Code “that it is the reason for the termination mentioned in the letter of dismissal which determines the disciplinary nature or not of the dismissal, the proposal made by the employer for a disciplinary downgrading, involving a modification of the employment contract refused by the employee, being irrelevant” (Cass. Soc. 9 March 2022, No. 20-17.005).
PROFESSIONAL ALERT: Strengthening of the protection of whistleblowers.
Two laws published in the Official Journal of 22 March 2022, including an organic law, aim to strengthen the existing measures for whistleblowers by strengthening their protection and strengthening the role of the Defender of rights relating to whistleblowing. The status of the whistleblower is notably redefined: “shall be considered a whistleblower a natural person who reports or discloses, in good faith and without direct financial compensation, information relating to a crime, an offence, a threat or damage to the general interest, a violation or an attempt to conceal a violation of international or European Union law, of the law or of a regulation”. From now on, a whistleblower may report facts that are brought to his knowledge and not only facts of which he has personal knowledge. Moreover, the whistleblower is no longer required to first launch an internal alert. He may choose from the outset between internal reporting and reporting to the Defender of Rights (Organic Law No. 2022-400 of 21 March 2022, Law No. 2022-401 of 21 March 2022, Official Journal of 22 March).
HEALTH AT WORK: Publication of the decree relating to the new single document on risk assessment.
Taken following the law No. 2021-1018 of 2 August 2021 to reinforce health prevention at work, this decree specifies in particular the rules of setting up, updating, keeping (whose duration is now 40 years). It also widens the availability of the single document to former workers and to services of prevention and health at work (D. No. 2022-395 of 18 March 2022, Official Journal of 20 March).