NewsletterNewsletter No.161 – May 2022
BREACH OF CONTRACT: Validation of the Macron scale in case of dismissal without real and serious cause.
In two decisions of 11 May 2022, the employment division of the French Supreme Court (Cour de cassation) decided several delicate questions relating to the Macron scale. In the first case, the Court of Appeal had declared that the application of the scale was inconsistent with Article 10 of the ILO Convention No. 158. In the second case, the employee challenged the application of the scale by the Court of Appeal, by raising its incompatibility with Article 24 of the European Social Charter. The Cour de cassation decides that “the provisions of articles L. 1235-3, L. 1235-3-1 and L. 1235-4 of the Labor Code are such as to allow the payment of adequate compensation or considered as appropriate within the meaning of Article 10 of the ILO Convention No. 158”. It thus rejects any possibility of a review, in practice, of conventionality with regard to this Convention, arguing that such a review would create uncertainty for litigants about the applicable rule of law, which would then be likely to change depending on individual circumstances and their assessment by judges, and would undermine the principle of citizens’ equality before the law. Finally, it concludes that individuals cannot invoke the European Social Charter before national courts (Cass. soc., 11 May 2022, No. 21-14.490, Cass. soc., 11 May 2022, No. 21-15.247).
WHISTLEBLOWER PROTECTED EMPLOYEE: Details of the procedure to follow in the event of dismissal.
In accordance with Article L.1132-3-3 of the Labor Code, no employee may be penalized for having, in good faith, related or given evidence of facts constituting an offence or a crime of which they would have had knowledge in the performance of their duties. This specific protection regime may interfere with the protection that the employee would also have pursuant to a representative office, which requires the involvement of the labor inspector prior to any dismissal. In this case, an employee protected as an elected member of the CSE[1] had reported to the statutory auditors of the company employing him facts that could, according to him, constitute an offence of misuse of corporate assets. His employer had obtained, on hierarchical appeal, the authorization to dismiss him for serious misconduct because of the report thus made. The administrative court and then the administrative court of appeal had decided that the accusations made constituted misconduct serious enough to justify the dismissal, considering that they “were not supported by any conclusive element“, jeopardizing the image and the reputation of the company. The French Administrative Supreme Court (Conseil d’Etat) considered that in the event that the labor inspectorate is being submitted such a request, it is up to it to determine 1) whether the reported facts are likely to be qualified as a crime or as an offence, 2) if the employee became aware of them in the performance of his duties and 3) if he can be regarded as having acted in good faith. When the three conditions are met, the administrative authority must refuse to issue the authorization of dismissal (CE, 27 April 2022, No. 437735).
PROFESSIONAL ELECTIONS: Challenging an employer’s unilateral decision that sets the terms of organization of the elections.
The terms of organization and conduct of the electoral operations are the subject of an agreement between the employer and the trade unions, entered into in accordance with the Labor Code. The terms on which no agreement could be reached may be set by a decision of the judicial judge. In the absence of an agreement satisfying the conditions of validity provided for by the Labor Code, it is up to the employer, in the absence of referral to the court of justice, to set the terms of organization and conduct of the elections. By a decision of 18 May 2022, the employment division of the Cour de cassation decided that in the absence of prior referral to the judicial judge to contest such a decision, a union having expressed no reservations on said terms may not contest the validity of this unilateral decision after the public announcement of the results of the elections (Cass. soc., 18 May 2022, No. 21-11.737).
EMPLOYMENT CONTRACT: Limitation period for an action in recognition of an employment contract.
In two similar cases, the Cour de cassation ruled that “the action by which a party requests to classify a contract, the legal nature of which is undecided or disputed, as an employment contract has the nature of a personal action and falls within the scope of the five-year prescription of Article 2224 of the Civil Code“, adding: “The starting point of this period is the date on which the contractual relationship, the qualification of which is disputed, ceased. It is indeed on this date that the holder is aware of all the facts allowing him to exercise his right” (Cass. soc., 11 May 2022, No. 20-14.421, No. 20-18.084).
HEALTH AND SAFETY: Obligation to reinstate an employee declared unfit by the occupational doctor.
Article L.1226-2 of the Labor Code provides that “when an employee who is the victim of an illness or a non-occupational accident is declared unfit by the occupational doctor (…) to return to the job he held previously, the employer offers him another job appropriate to his abilities, within the company or companies of the group to which it belongs”. In a decision of 11 May 2022, the employment division of the Cour de cassation ruled that the obligation on the employer to seek reinstatement for the employee declared unfit arises on the date of the declaration of unfitness by the occupational doctor. Thus, as long as the unfitness has not been established pursuant to Article L.4624-1 of the Labor Code, in its wording resulting from law No. 2016-1088 of 8 August 2016, which entered into force after the notice of unfitness, the provisions prior to the entry into force of this law shall apply (Cass. soc., 11 May 2022, No. 20-20.717).
COLLECTIVE BARGAINING: When contractual stipulations and conventional provisions are both applicable, which ones are to prevail?
An employer sought reimbursement of the attendance bonus established by collective agreement, claiming that employees could not benefit from the combination of the production bonus, which was of a contractual nature, and the attendance bonus on the grounds that they both aimed to encourage and reward the employee’s actual presence at his workstation and thus had the same purpose and the same cause. The Paris Court of Appeal dismissed the company’s request and ruled that the production bonus did not have the same purpose as the attendance bonus. The Cour de cassation disapproved by stating as a reminder that in the event of contractual stipulations and conventional provisions both being applicable, the advantages having the same purpose or the same cause could not, except in case of contrary stipulations, be combined, only the most favorable one being able to be granted (Cass. soc., 11 May 2022, No. 21-11.240).
MUTUALLY AGREED TERMINATION: Payment of compensation to the deceased employee’s beneficiaries after approval.
On 11 September 2015, an employee and his employer signed a mutually agreed termination to take effect on the following 21 October. The administrative authority approved the agreement on 9 October. Unfortunately, the employee died between the approval and the date of the termination. The Court of Appeal sentenced the employer to pay the amount of the severance payment to the deceased employee’s beneficiaries. The Cour de cassation confirmed this decision and ruled that “the severance payment claim, if it is only due on the date fixed by the termination, arises as soon as the agreement is approved” (Cass. soc., 11 May 2022, No. 20-21.103).