NewsletterNewsletter No. 168 – December 2022
DISMISSAL FOR ECONOMIC REASONS: It is forbidden to waive the dismissal rules in advance.
The Labor Code provides that in the event of non-execution by the employee of the notice, the employer is required to pay compensation only when he has unilaterally decided to exempt the employee from performing his work or when this non-performance is attributable to him. Similarly, employers and employees cannot waive in advance the right to avail themselves of the dismissal rules (Labor Code, L. 1231-4). In this case, in the context of an economic redundancy procedure, an employee had been informed of the abolition of her post and of the redeployment and support measures put in place in the company in the form of a “mobility plan”. Having found another job provided she was available quickly, she asked her employer in writing to dismiss her as soon as possible. The employer agreed to take her request into account. First, regarding the redeployment obligation incumbent on him, he limited himself to indicating to her that no post was available. Then, regarding the notice, he indicated, in the letter of notification of the dismissal, that he had accepted her request to be exempted from carrying out her notice of dismissal. The Court of Appeal ordered the employer to pay the employee compensation in lieu of notice and the related paid leave as well as damages for dismissal without real and serious cause. The French Supreme Court (Cour de Cassation) confirms in all respects the decision of the trial judges and states as a reminder that the provisions of article L.1231-4 of the Labor Code are of public order: neither the employer nor the employee may waive them in advance (Cass. Soc., 7 December 2022, No. 21-16.000).
UNFITNESS: An employee can validly be declared unfit even without a study of the position.
In this case, an employee had been declared unfit for his job by the occupational doctor, who had considered that his health condition was an obstacle to any redeployment. The employer appealed against this opinion, arguing that before issuing his opinion, the occupational doctor had not carried out any study of the position, nor any study of the working conditions in the company, in violation of the provisions of article R.4624-42 of the Labor Code then applicable. The Cour de cassation relies on the sovereign power of the trial judges and notes that the employee’s unfitness “did not result from the working conditions but from a deterioration in the relations between the parties during the leave from work and the psychic consequences which have resulted from it”. In this context, the absence of a study of the position or of the recent working conditions had not influenced the conclusions of the occupational doctor (Cass. Soc., 7 December 2022, No. 21-17.927).
MOBILITY CLAUSE: The application of a mobility clause within a group constitutes a modification of the employment contract.
As a reminder, the mobility clause is the stipulation of a contract by which an employee accepts, in advance, that his place of work may be modified. In this case, an employee’s employment contract included a mobility clause stipulating that the employee “undertakes to accept any transfer to another establishment or subsidiary, located in mainland France“. His employer implemented this clause but, faced with the employee’s refusal, he dismissed him. In a decision which is not published in the bulletin, the Cour de cassation applies consistent case law by deciding on the one hand “that an employee cannot accept a change of employer in advance” and on the other hand that “the mobility clause by which the employee bound by an employment contract to a company undertakes to accept any transfer to another company, even though this company belongs to the same group, is null” (Cass. Soc., 14 December 2022, No. 21-18.633).
DIGITIZED SIGNATURE: The digitized signature of the employer on a CDD (fixed-term contract) is valid.
An employee is hired on a seasonal fixed-term contract as an occasional worker on a farm. He takes note of the employment contract termination considering that the bond of trust was broken due to the transmission for signature of an employment contract comprising a photocopied and not handwritten signature of the employer. He referred a request for conversion of the CDD into a CDI (permanent contract) and various requests relating to the contract termination to the labor court. The Cour de cassation approves the trial judges of having considered as valid the company’s manager’s digital signature, making it possible to identify its author, who was authorized to sign an employment contract (Cass. Soc, 14 December 2022, No. 21-19.841). Even though the digitized signature cannot be assimilated to an electronic signature, the affixing of the company’s manager’s digitized handwritten signature was therefore not equivalent to the absence of a signature, so that the request for conversion of the CDD into a CDI had to be rejected.
ELECTRONIC VOTING: The recommendations of the CNIL on the processing of personal data in the event of electronic voting during professional elections.
Professional elections can take place by electronic voting if a collective company or group agreement, or, failing that, the employer, so decide (C. trav. art. L 2314-26 and R 2314-5). In a document published on its website, the Commission Nationale de l’Informatique et des Libertés (CNIL) lists the answers to the questions it is most frequently asked about the collection and use of voters’ personal data when electronic voting is used. The CNIL states in particular as a reminder that the employer who uses electronic voting for the election of representative bodies does not, in principle, have to complete any formality with it. However, the employer must individually inform the concerned employees of the transmission of some of their personal data to the voting solution provider. The employer can indeed decide to delegate this task to a service provider, subject to checking that the information is delivered in accordance with the GDPR. The CNIL also states as a reminder that the electronic voting system set up in the company must ensure that the addressing of the means of authentication is secured (C. trav. art. R 2314-6). In this respect, there are several means to reduce the risk of identity theft. For example, the CNIL recommends completing the authentication process by asking the voter to answer a non-trivial secret question, to which he alone knows the answer, with the data controller.
UNEMPLOYMENT: The right to unemployment benefits will be excluded in the event of refusal of a CDI at the end of a CDD or an interim contract.
Article 2 of the Labor Market Law introduces, in the Labor Code, new provisions providing for the exclusion of the benefit of unemployment benefits to employees who have refused a CDI at the end of a CDD (C. trav., L.1243-11-1) or a temporary employment contract (C. trav., L.1251-33-1). In these two cases, the law requires the employer to notify the employee of the CDI proposal in writing. In the event of the latter’s refusal, the employer must inform Pôle emploi that the employee has refused his CDI proposal and justify “the similar nature of the proposed job“. These provisions are yet to be clarified by a decree of the French Administrative Supreme Court (Conseil d’Etat).