NewsletterNewsletter No. 169 – January 2023
SEXUAL HARASSMENT: Control of compliance with the obligation to prevent sexual harassment: duty of the appeal judge in the absence of the appearance of the employer.
As a reminder, Article 472 of the Code of Civil Procedure provides that “if the defendant does not appear, a decision is nevertheless made on the merits” and that “the judge grants the request only insofar as he considers it regular, admissible and well-founded”. In this case, an employee dismissed for incapacity had referred her case to the labor court, arguing that her incapacity was caused by acts of sexual harassment on the part of another employee. The Court of Appeal granted her requests, considering that the employer did not demonstrate that he had taken the necessary measures to put an end to the alleged facts, although he was aware of them and that this situation was the cause of the deterioration of the employee’s state of health. The employer, who had not appeared on appeal, appealed against the decision, on the grounds that “the appeal judge may not, in the absence of the respondent, overturn the decision without refuting the reasoning of the trial judges”. The French Supreme Court (Cour de cassation) followed his argument and ruled that the Court of Appeal should have examined the grounds for the first judgment, especially since “the debates and the documents filed show that the company has stopped having the employee and her colleague ride in the same car as soon as it was made aware of the alleged sexual harassment situation“, “informed the labor inspectorate” and “therefore did everything in its power to comply with its safety obligation“(Cass., Soc., 18 January 2023, No. 21-23.796).
DISCRIMINATION: The protection against discrimination extends to self-employed workers.
In this case, a company had terminated its service contracts and ceased all activity with a Polish self-employed worker after the latter had revealed his sexual orientation to the public. The latter brought an action before a Polish court for damages for direct discrimination on the grounds of his sexual orientation. A preliminary question has been submitted to the Court of Justice of the European Union (CJEU) to find out whether Directive 2000/78/CE of 27 November 2000 on equal treatment in matters of employment and labor conflicts with national regulations excluding from the protection against discrimination the refusal to conclude or renew a contract with a self-employed worker because of his sexual orientation, in the name of the freedom of contract. The Court addresses the issue in several stages. It asserts, first, that the notion of “conditions of access to employment, to self-employed activities or to work” falling within the scope of the directive should be understood as including any professional activity, whatever the nationality and the characteristics of said activity. This activity must nevertheless be real and carried out within the framework of a legal relationship characterized by a certain stability, a condition fulfilled in this case. It points out that the notion of dismissal, which refers to the unilateral cessation of any activity mentioned in Article 3(1)(a) of the directive, must also be interpreted broadly: the decision not to renew the contract because of the contractor’s sexual orientation therefore falls within the scope of Directive 2000/78. Finally, it considers that the freedom of contract cannot be invoked as a reason justifying the refusal to contract with a person because of their sexual orientation, which would deprive of its useful effect the prohibition of discrimination laid down by the directive (CJEU, 12 January 2023, case C-356/21).
ECONOMIC REDUNDANCY: The information of the employee on the economic reason for the termination of the employment contract must occur before entering into the CSP.
As a reminder, the professional securing contract (CSP) is a reinforced support system aimed at organizing and carrying out a return-to-work process. Articles L.1233-65 et seq. of the Labor Code require the employer to offer to each employee whose dismissal he plans to pronounce for economic reasons, the possibility to benefit from said CSP during the pre-dismissal meeting or the last meeting of the staff representatives. In a judgment of 18 January 2023, the employment division of the Cour de cassation states as a reminder that the employee who enters into a professional security contract by signing the acceptance form must have previously received from the employer a written document stating the economic reason for the termination of the employment contract. Information given in a dismissal letter notified subsequently is therefore irregular and renders the dismissal without real and serious cause (Cass Soc., 18 January 2023, No. 21-19.349).
STRIKE: Nullity of the dismissal of a striking employee: the employer must reimburse unemployment benefits.
An employee had been dismissed for gross misconduct for having, during a strike in which he participated, made remarks with a racist connotation, and insulted and threatened non-striking employees. The Cour de cassation agreed with the trial judges for having considered that the intention to harm, and therefore gross misconduct, was not established and for having declared the dismissal null and void due to the normal exercise of the right to strike pursuant to Article L.2511-1 of the Labor Code. It also approved the condemnation of the employer, in application of Article L.1235-4 of the same Code, to reimburse to Pôle emploi the unemployment benefits paid to the employee between the date of the dismissal and the judgment, within the limit of three months of benefits (Cass. Soc., 18 January 2023, No. 21-20.311).
HEALTH AND SAFETY: Expansion of the scope of compensation for victims of an occupational accident or of an occupational illness in the event of an inexcusable fault on the part of the employer.
By a case law turnaround, the Cour de cassation now admits that victims of an occupational accident or of an occupational illness may obtain additional compensation for the physical or moral suffering endured after consolidation. It is not necessary to demonstrate that the pension received does not already cover this suffering (Cass. Ass. Plen., 20 January 2023, No. 21-23.947 ; Cass. Ass. Plen., 20 January 2023, No. 20-23.673).
RETIREMENT: Presentation of the pension reform project.
The amending social security financing bill for 2023 provides for the evolution of certain provisions relating to retirement. Indeed, from 1 September 2023, the legal retirement age would be raised by three months per year to reach 64 years of age in 2030. The age at which workers may retire without a discount would be maintained at age 67. The project would be universal and would concern all working people: employers would therefore be asked for an additional contribution to finance retirement, in parallel with a reduction in the amount of the contribution paid to the work accident and occupational illness scheme. The executive wants to keep and improve the “long career” system so that no one who started working early is forced to work more than 44 years. With regard to arduous jobs, the Government intends to strengthen medical monitoring and better support the concerned employees towards early retirement schemes at age 62. Similarly, a retirement at age 62 at a full rate would be maintained for people on disability, incapacity or unfitness. Finally, the Government wishes to close most of the special regimes. New recruits would therefore be affiliated to the general scheme.