DISMISSAL: Indication of the procedure for requesting details on the reasons for dismissal in the notification letter.
According to Article L.1235-2 of the Labor Code, the employee who is notified of his dismissal may, within 15 days following the notification of the termination of his employment contract, ask the employer for details on the reasons set out in the termination letter. If the employee fails to have activated this mechanism, the possible insufficiency of motivation of the letter of dismissal, which would later be noted by the judge, shall constitute only a simple irregularity of form, to be compensated by a sum capped at one month of salary. It could therefore have been legitimately expected that the employer would be required to indicate, in the letter of dismissal, the existence of such an option. In a judgment of 29 June 2022, the French Supreme Court (Cour de cassation) however affirms that “no provision requires the employer to inform the employee of his right to request that the reasons for the letter of dismissal be specified“. In doing so, it agrees with the position that the Ministry of Labor had presented on 15 July 2020 in a Q&A, in which it had indicated that “the procedure for details on the reasons […] must not imperatively appear in a letter of dismissal” (Cass. soc., 29 June 2022, No. 20-22.220).
COVID-19: Conditions for using the derogatory system for taking days of rest set up in the context of the health crisis.
The order No. 2020-323 of 25 March 2020 on emergency measures in terms of paid leave, working hours and days of rest temporarily allowed employers to unilaterally require employees to take, on a specified date, days of reduced working time (RTT), days of rest provided for by a flat-rate pay agreement or resulting from the use of the rights assigned to the time savings account, within the limit of 10 days. The mechanism has been extended until 30 September 2021. In a decision of 6 July 2022, the Cour de cassation considered that “in the event of a dispute, it is up to the judge to verify that the employer, who is responsible for the evidence, justifies that the derogatory measures, which he adopted pursuant to Articles 2 to 5 of the order No. 2020-323 of 25 March 2020, were taken due to the repercussions of the health crisis situation on the company“. It specified, in the explanatory notice of the decision, that “the use of the measures provided for in Articles 2 to 4 of the order is not limited to the sole situation of economic difficulties, in particular as they are defined in terms of redundancy, or to cash-flow problems“. However, this system could not be used with regard to employees eligible for partial activity as vulnerable people or parents forced to keep their child at home (Cass. soc., 6 July 2022, No. 21-15.189).
MORAL AND/OR SEXUAL HARASSMENT: Admissibility of a non-exhaustive internal investigation report as proof of acts of harassment.
In accordance with Articles L.4121-1 and L.1152-4 of the Labor Code, when informed of facts likely to constitute harassment, the employer must, in accordance with his safety obligation, immediately take measures in order to put an end to these acts. Among the actions to be implemented, it is up to him to carry out investigations to establish the reality of the facts. If they are proven, their perpetrator shall be punishable by a sanction which may go as far as dismissal. In this case, two employees had reported acts constituting moral and sexual harassment on the part of their hierarchical superior. The employer had therefore launched an internal investigation and questioned the employees in direct relation to these facts. Having admitted the facts during the investigation, the hierarchical superior had been dismissed for serious misconduct. The court of appeal had ruled the dismissal without real and serious cause. In a decision of 29 June 2022, the Cour de cassation stated as a reminder that the internal investigation report is a valid type of evidence in a dispute between an employer and an employee dismissed due to acts of moral and/or sexual harassment. It specified that it cannot be excluded from the debates, on the grounds that all the witnesses were not interviewed and that the elected staff were not involved therein (Cass. soc., 29 June 2022, No. 21-11.437).
TRAVEL EXPENSES: Bearing by the employer of the travel expenses of employees who moved to the provinces during the health crisis.
Article L.3261-2 of the Labor Code provides that “the employer shall pay, in a proportion and under the conditions determined by regulation, the price of subscription titles taken out by his employees for their travel between their habitual residence and their place of work carried out by means of public passenger transport or public bicycle rental services”. Article R.3261-1 of the same code sets the bearing of said subscription titles at 50%. In this case, the union and the Social and Economic Committee (CSE) of a company contested the refusal of the employer to bear the travel expenses for employees who had moved during the health crisis. They considered that this measure contravened the legal provisions and the practice in force within the company, according to which the bearing of the expenses shall be of up to 60%, without any mention of any obligation regarding the domicile. In a decision of 5 July 2022, the court of justice of Paris considered “that by determining the reimbursement of public transport costs by a criterion of geographical distance […], the employer disregarded his legal obligations governed by articles L.3261 and R.3261-1 et seq. of the Labor Code”. It thus instituted a difference in treatment among the employees, depriving some of them of the reimbursement of travel expenses (TJ Paris, 5 July 2022).
SOCIAL POLICY: Adoption in first reading of the bill on purchasing power.
After four days and one night of examination in public session, the bill on emergency measures for the protection of purchasing power was adopted at first reading by the députés (i.e., members of the French parliament) on the night of 21 July to 22 July 2022. Its main provisions aim to limit the impact of inflation on households’ budgets. The bill, which has not been significantly revised compared to the version presented to the Council of Ministers on 7 July, includes three sections: protection of the standard of living of the French people, consumer protection and energy sovereignty (Bill on emergency measures for the protection of purchasing power).
JURISDICTION OF THE CSE OF AN ESTABLISHMENT (or CSEE): Consultation of the CSEE to develop measures decided at the central level.
In a decision of 29 June 2022, the employment division of the Cour de cassation considered that in the event of a major adjustment of the working conditions decided at the company level, the CSE of the establishment (CSEE) shall be consulted only on the adaptation measures which are within the jurisdiction of the head of the establishment and which are specific to this establishment. It is on the basis of this principle, which is a strict summary of the provisions provided for in the Labor Code in this respect, that the Cour de cassation ruled out the consultation of a CSEE on the development of a national post-lockdown recovery plan, in the absence of any local specificity in its implementation. The consultation of the CSE was sufficient (Cass. soc., 29 June 2022, No. 21-11.935).