NewsletterNewsletter No.160 – April 2022

FREEDOM OF EXPRESSION: Sexist remarks trivializing violence against women.

A humorist, presenter on France 2, had been dismissed for serious misconduct in the following circumstances: at the end of a program, he was invited to conclude it with a touch of humor and had said the following: “Guys, do you know what we tell a woman who already has two black eyes? – That’s a terrible one! – we tell her nothing more, we’ve already explained it to her twice!” A few days later, during a shoot, the presenter was asking several questions to a candidate about the frequency of her sexual relations with her companion, while he had actually been alerted several times by his employer to the need to change the behavior he had on the set towards women. The employee contested his dismissal, considering that he could freely use his freedom of expression in the company and outside it, and that he had not committed any abuse or breach of his ethical commitment, especially since he was a humorist. For many years, the French Supreme Court (Cour de cassation) has ruled that, except in the case of abuse, an employee shall enjoy freedom of expression inside and outside the company. Such freedom may be subject to restrictions justified by the nature of the tasks to be performed, but they shall be proportionate to the intended goal. In this case, the salaried presenter was bound by his employment contract to observe a charter by which he undertook not to make any comments with a sexist connotation. The Cour de cassation considered that this restriction on the freedom of expression pursued a legitimate goal: “Of all these elements, the Court of Appeal, which pointed out that the dismissal, based on the violation by the employee of a clause of his employment contract as a presenter, pursued the legitimate goal of fighting against discrimination on the basis of sex and domestic violence and that of the reputation and rights of the employer, has exactly deduced, given the potential impact of the employee’s repeated remarks, reflecting a trivialization of violence against women, on the employer’s commercial interests, that such termination was not disproportionate and did not excessively undermine the employee’s freedom of expression“(Cass. Soc., 20 Avril 2022, No. 20-10.852).

SUBORDINATION RELATIONSHIP: Classification process in the context of a relationship between a driver and a platform.

A VTC^[1] driver had signed a long-term rental contract for a vehicle, along with a computerized membership contract with the same company. Following termination of the contract, he referred his case to the labor court to have the relationship converted into an employment contract. The trial judges noted the existence of a subordination relationship through the following elements: the absence of free choice regarding the vehicle, the interdependence between rental contracts and membership of the platform, the real-time location of the driver by GPS and his permanent monitoring the invoicing of the client by the company in the name and on behalf of the driver, and the power of sanction through the rating system by the people transported. However, the Cour de cassation disagrees. It quashes the Court of Appeal’s decision by specifying that as part of an organized service, the subordination relationship is established by “directives on the methods of execution of the work” (…) as well as the “power to monitor compliance and to sanction non-compliance (…)” (Cass. soc. 13 April 2022, No. 20-14.870).

REINSTATEMENT OF A PROTECTED EMPLOYEE: Tax consequences of the payment of compensation for suffered damage.

A protected employee was dismissed with the authorization of the labor inspectorate and then reinstated in his position, more than two years later, following an action before the administrative courts. He received full compensation for the damage suffered during the period between his dismissal and his reinstatement, which had the effect of increasing his income tax. Before the trial judges, the employee obtained an order against the employer to pay damages in compensation for this tax loss. The Cour de cassation however disagrees with this solution and states as a reminder that, if compensation for the damage must be full, without loss or profit, “the tax provisions affecting income have no effect on the obligations of the persons responsible for the damage and the calculation of compensation for the victims” (Cass. Soc. 6 April 2022, No. 20-22.918).

TRADE UNION: Verification of the representativeness of the trade unions that have signed a collective agreement.

When the administration receives a request for validation of a company agreement relating to an employment safeguard scheme (PSE), it must make sure that the agreement submitted has been duly signed on behalf of one or more representative trade union organizations representing at least 50% of the votes cast during the first round of the last professional elections. In this respect, the French Administrative Supreme Court (Conseil d’Etat) states as a reminder that it shall notably verify the criteria of representativeness of the trade union, which includes financial transparency. In this case, the signatory trade union, which had not published its accounts for the last closed financial year preceding the signing of the agreement, did not meet this criterion, so that the administration could not approve the PSE agreement (CE, 6 April 2022, No. 444460).

PROFESSIONAL ELECTIONS: Pre-election dispute followed by electoral dispute.

A trade union had referred its case to a primary court to request the annulment of a candidacy presented by another trade union, due to non-compliance with the rules of parity. It was dismissed. After the elections, the trade union again referred its case to the court, this time to annul the election of the same elected candidate. The court declared the request was inadmissible with regard to the res judicata drawn from the previous decision. But the Cour de cassation considers that, even if it is on the basis of the same reasons, there is no authority of res judicata between a decision regarding pre-election litigation and an electoral dispute (Cass. Soc. 6 April 2022, No. 20-18.198).

DISCIPLINARY DISMISSAL: Occurrence of misconduct after the pre-dismissal meeting and new notification to attend before notification of the dismissal.

An employer had asked an employee to attend a pre-dismissal meeting regarding a disciplinary dismissal. Fifteen days after this meeting, the employer, informed of new misconduct, asked the employee to attend a new meeting. The employee having been dismissed for serious misconduct more than a month after the first meeting, the Court of Appeal ruled that the dismissal was without real and serious cause. But the employer won his case before the Cour de cassation, which specifies referring to Article L.1332-2 of the labor code that: “It follows from this text that when, due to the occurrence of new misconduct after a pre-dismissal meeting, the employer sends to the employee, within a period of one month from the first meeting, a notification to attend a new pre-dismissal meeting, the one-month period allotted to him to notify the sanction shall start on the date of the last meeting” (Cass. Soc. 23 March 2022, No. 20-19.963).

BDESE: List of environmental indicators.

The Climate law of 22 August 2021 added an environmental section to the economic and social database (BDES), which has thus become the economic, social and environmental database (BDESE). The decree setting the list of environmental indicators to be included therein has just been published and shall come into force on 28 April 2022 (D. No. 2022-678 of 26 April 2022, Official Journal of 27 April).

1. i.e., chauffeured passenger cars ↑