REDUNDANCY: Assessment of the economic ground based on a significant drop in the company’s turnover or orders.
Pursuant to Article L.1233-3 of the labor code, a significant drop in the turnover or orders during one or more consecutive quarters shall justify redundancy based on economic difficulties. In a decision of 1 June 2022, the employment division of the French Supreme Court (Cour de cassation) specified that this drop shall be assessed “during the period contemporaneous with the notification of the termination of the employment contract“, i.e., the period directly preceding the dismissal. In this case, to validate the dismissal determined on such a ground on 5 July 2017, the Court of Appeal had excluded the first quarter of 2017 from the reference period on the grounds that the turnover had only experienced a slight increase of 0.50% compared to the first quarter of 2016. The Cour de cassation considered that the ground was not valid, the duration of the decrease not equaling four consecutive quarters preceding the termination of the employment contract. It pointed out that any increase, however modest, in the turnover or orders during the reference period shall be enough to disqualify the redundancy. Thus, to determine whether such a drop has occurred, the judge must compare two periods, of one or more quarters depending on the company’s workforce, namely the quarter or quarters preceding the notification of the termination of the employment contract, and the quarter or quarters of the same period of the previous year (Cass. soc., 1 June 2022, No. 20-19.957).
PROFESSIONAL ELECTIONS: Value of the principle of equality in the exercise of the right to vote.
A company had decided to use electronic voting for the elections of the members of the social and economic committee. Yet, some of the employees not having access to professional IT tools allowing them to vote, two unions had submitted the issue to the court and obtained the cancellation of these elections. By a decision of 1 June 2022, the Cour de Cassation approves this solution, referring to an “infringement to the general principle of equality in the exercise of the right to vote“. It states as a reminder that when a poll is organized exclusively electronically, the employer must ensure that all voters have access to the equipment allowing them to participate. In so doing, it has elevated the principle of equality in the exercise of the right to vote to the rank of general principle of electoral law, making cancellation inevitable when an irregularity is noted in this respect (Cass. soc., 1 June 2022, No. 20-22.860).
PAY: Starting point of the back pay action based on the conversion of a part-time employment contract into a full-time contract.
An employee made redundant on economic grounds had submitted to the labor court a request for converting his part-time contract into a full-time contract and for sentencing his employer to the payment of various sums in relation to the execution and the termination of his employment contract. The Cour de Cassation, in a judgment of 9 June 2022, considered that “the duration of the limitation period being determined by the nature of the claim invoked, the request for back pay based on the conversion of a part-time employment contract into a full-time employment contract shall be subject to the three-year limitation period of article L.3245-1 of the labor code “. This period runs from each pay due date, for the amount due on that date or, when the contract is terminated, for the sums due with respect to the three years preceding the termination of the contract. Consequently, the starting point of the action is not the irregularity invoked by the employee, but the date of payability of the back pay due as a result of the conversion (Cass. soc., 9 June 2022, No. 20-16.992).
PRIOR MEDIATION CLAUSE: Referral to the labor court in the presence of a prior mediation clause.
In an opinion delivered on 14 June 2022, the Cour de cassation specified “that due to the existence in labor matters of a preliminary and compulsory conciliation procedure, a clause in the employment contract which establishes prior mediation in the event of a dispute arising out of this contract does not prevent the parties from referring their case directly to the labor court” (Opinion of 14 June 2022, No. 22-70.004).
DELEGATION HOURS: Refusal of an employer to pay the hours of delegation of a staff representative.
Articles L.2142-1-3, L.2143-17 and L.2315-10 of the labor code provide that an employer who intends to contest the use made of the delegation hours must first pay them, then refer the case to the ordinary court. An employee exercised his representative duties full-time. Considering that the duration of his mandates no longer covered his entire working time, the employer had stopped paying him the part of his salary corresponding, according to him, to the actual work that the employee should have carried out. The Cour de cassation, in a decision of 1 June 2022, considered that, regardless of the reason for the dispute, if the deductions from salary correspond to hours of delegation, there is manifestly unlawful disturbance that the judge imposing interim measures is entitled to put an end to. However, it has specified that a late payment by the employer of the sums due to the employee may justify his being sentenced to pay damages only on the double condition for the latter to justify damage that is distinct from that which is compensated by late payment interest, and to establish that the employer’s failure results from his bad faith, which cannot be presumed (Cass. soc., 1 June 2022, No. 20-16 836).
TEMPORARY INCREASE IN ACTIVITY: Use of the assignment contract for temporary increase in activity.
On the occasion of an assignment contract, an employee had been made available to a company for “temporary increase in the activity of the company linked to the development of the customer portfolio in France“. The employment relationship had continued in the form of a permanent contract. The Cour de cassation held, in a decision of 9 June 2022, that the use of an assignment contract for a temporary increase in activity could correspond to an additional activity linked to the season, without having seasonality as a ground for use, if there was a correlation between the peak of activity and the use of the precarious contract. It also indicated that the fact that the employee was assigned, pursuant to a permanent contract, to a job with major similarities to that which motivated the use of the temporary contract establishes that the company has drawn the consequences of the need to perpetuate the prospecting action, as was demonstrated to it by the employee, and to make it a regular activity extended to the whole of the year (Cass. soc., 9 June 2022, No. 21-11.482).
MORAL HARASSMENT: Internal investigation carried out by the HRM as evidence.
An employer must take the necessary measures to ensure the safety and protect the physical and mental health of the employees. He must justify having taken the measures provided for by articles L.4121-1 and L.4121-2 of the Labor Code and, if he is informed of facts likely to constitute moral harassment, having taken the immediate measures likely to put an end to it. In a decision of 1 June 2022, the Cour de cassation considered that, even if the staff representatives were not associated with the conduct of an internal investigation carried out by the HRM due to moral harassment invoked by an employee against a colleague, this piece of evidence must be examined by the trial judges (Cass. soc., 1 June 2022, No. 20-22.058).