NewsletterNewsletter No.167 – November 2022
ITINERANT EMPLOYEES: The travel time of itinerant employees may constitute effective working time.
As a reminder, an employee’s travel time should be qualified as actual working time only when it exceeds the normal travel time between home and the usual place of work. A difficulty arises regarding itinerant employees, since the latter have, by definition, no usual place of work or normal commuting time. In this case, an itinerant employee had to, during his journeys made using the company’s vehicle, set appointments or call and respond to various interlocutors. He worked for clients spread over a very large area. In a judgment of 23 November 2022, the French Supreme Court (Cour de Cassation) ended up aligning itself with the position of the Court of Justice of the European Union, by considering that an itinerant employee’s travel time between his home and the first and last customers’ sites may, under certain conditions, be recognized as effective working time (Cass. Soc., 23 Nov. No. 20-21.924). Consequently, this travel time may be taken into consideration in the overtime count…
UNFITNESS FOR WORK: No consultation of the CSE in the event of an exemption from seeking redeployment.
As a reminder, employers must obtain the opinion of the social and economic committee (CSE) on the possibilities of redeployment of any employee declared unfit (Labor Code art. L 1226-2, §3 ; Labor Code art. L 1226-10, §2). In addition, any employee declared unfit may be subject to an express exemption from redeployment by the occupational doctor, regardless of the origin of the unfitness (Labor Code art. L 1226-2-1, §2 ; Labor Code art. L 1226-12, §2). In a judgment of 8 June 2022, the Cour de Cassation had already ruled that the obligation to consult the CSE was not necessary when the occupational doctor’s opinion of unfitness expressly mentioned that any retention of the employee in their job was seriously prejudicial to their health or that the concerned person’s health was an obstacle to any redeployment in their job (Cass, Soc. 8 June 2022, No. 20-22.500). This judgment had been delivered regarding an employee who had suffered an occupational accident. By a judgment of 16 November 2022, the Cour de Cassation logically broadens this solution by transposing it to employees declared unfit as a result of an accident or a non-occupational illness (Cass, Soc., 16 Nov. 2022, No. 21-17.255).
STAFF REPRESENTATION: The rule of proportioned representation of women and men applies to by-elections.
In this case, the CSE in place in a company had lost half of its representatives. The employer was therefore required to organize by-elections. One of the unions had submitted a list of four candidates, composed entirely of men, both for the representatives and for the alternates. In a judgment of 9 November 2022, the Cour de Cassation approves the judgment of the court of justice, specifying that “the by-elections take place on the basis of the provisions in force during the previous election” (Cass. Soc., 9 Nov. 2022, No. 21-60.183). Consequently, the question of respecting parity for a union’s list must be assessed each time the list is submitted, that is to say at the time of the initial election of the CSE as well as at the time of the by-election.
DISCRIMINATION: An airline cannot forbid a flight attendant from wearing braids.
In this case, an Air France steward had been refused boarding on the grounds that his hairstyle – long hair done in African braids tied in a bun – was not authorized by the uniform rules for male cabin crew. The Court of Appeal considered this prohibition to be legitimate, ruling out any form of discrimination, by considering in particular that the presentation of cabin crew was an integral part of the company’s brand image and that the company’s will to safeguard its image constituted a valid ground for limiting employees’ freedom of appearance. For the Cour de Cassation, this prohibition amounts to discrimination. In a judgment of 23 November 2022, the Court indeed considers that “the prohibition made to the person concerned to wear a hairstyle, yet authorized by the same reference frame for female staff, established discrimination directly based on physical appearance related to sex” (Cass. Soc., 23 Nov. 2022, No. 21-14.060). It deems that the Court of Appeal could not consider that the restrictions were necessary to allow the identification of Air France personnel and preserve the latter’s image. It also indicates that the Court of Appeal could not base itself either “on the social perception of the physical appearance of the male and female genders“, which could not constitute a genuine and determining occupational requirement justifying a difference in treatment relating to hairstyle between women and men. In its press release, the Cour de Cassation specified that social codes cannot constitute objective criteria justifying a difference in treatment between men and women.
EVIDENCE: Evidence from the employee’s personal electronic diary is not necessarily inadmissible.
In this case, an employee had acknowledged the termination of her employment contract, reproaching the employer in particular for acts of moral harassment and discrimination. She requested the reclassification of her termination acknowledgement and the payment of damages. In his defense, the employer produced documents from files taken from the employee’s electronic diary saved on her professional computer and not identified as personal. The trial judges had granted the employee’s request, considering that this type of evidence was inadmissible. In a judgment of 9 November 2022, the Cour de Cassation considers, however, that before dismissing from the proceedings evidence from the employee’s electronic diary available on her professional computer, the trial judges had to check “whether these documents had been identified as personal by their author” (Cass. Soc., 9 Nov. 2022, No. 20-18.922).
UNAUTHORIZED ABSENCE: The presumption of resignation is definitively adopted.
The “labor market” law inserts article L.1237-1-1 into the section of the Labor Code relating to termination at the employee’s initiative. According to this new article, an employee who is deliberately absent and who does not return to work after being given formal notice by his employer to justify his absence and to return to his position within the time limit set by the employer is presumed to have resigned upon expiry of this time limit. The entry into force of this measure, which is the subject of an appeal before the Constitutional Council, is subject to the publication of an implementing decree.
SOCIAL PROTECTION: Companies must register for the AT/MP account before 12 December 2022.
As a reminder, since 1 January 2022, all companies covered by the general scheme, regardless of their workforce, must submit a dematerialized notification of the contribution rate for occupational accidents and occupational illnesses (AT/MP). To fulfill this legal obligation, all a company has to do is register for the AT/MP account on net-entreprises.fr before 12 December 2022.