NewsletterNewsletter No. 172 – April 2023
UNFITNESS: Details on the extent of the redeployment obligation incumbent on the employer.
When an employee is declared unfit by the occupational doctor to return to their job, it is up to the employer to offer them another position appropriate to their abilities. When issuing his/her proposal, the employer must in particular take into account the written conclusions of the occupational doctor. The position offered must be as comparable as possible to the position previously held, if necessary, by implementing measures such as a transfer, a transformation of positions or an adjustment of working time (Art. L. L. 1226-2 ; L. 1226-10 of the Labor Code). In this case, the opinion of the occupational doctor specified that the employee “could occupy an administrative position without travel and part-time (two days a week) by teleworking from home with appropriate accommodation“. Dismissed for professional unfitness and impossibility of redeployment, she referred her case to the labor court. According to the employer, this obligation related only to available positions existing within the company. The employer therefore considered that he was not required to redeploy the employee to a teleworking position since there was no position of this type within the organization. In a decision of 29 March 2023, the French Supreme Court (Cour de Cassation) states as a reminder, referring to articles L.1226-10 and L.1226-12 of the Labor Code, that “it is up to the employer to fairly offer to the employee another position appropriate to their abilities, taking into account the recommendations and indications of the occupational doctor”. In its judgment, the Cour de cassation considers that the Court of Appeal was justified in considering that the employer had failed to fulfill his/her obligation to redeploy but also that the employee’s missions “were likely to be essentially carried out by teleworking part-time from home”, as had been recommended by the occupational doctor. The Cour de cassation also specifies that, to make its decision, the Court of Appeal did not need to find out whether teleworking had been set up within the company, as “adapting a position to a teleworking position [may] result from an amendment to the employment contract”. Given the similarity in wording between the specific provisions applicable in the event of professional unfitness, and the provisions applicable in the event of unfitness of non-professional origin, this solution seems applicable to any dismissal for unfitness, regardless of its origin (Cass. Soc., 29 March 2023, No. 21-15.472).
EXPERT’S ASSESSMENT ON THE REPORT RELATING TO PROFIT-SHARING: The financing of the cost of the expert’s assessment relating to the establishment of the report on profit-sharing in the company rests exclusively with the employer.
Within six months of the end of each financial year, it is up to the employer to submit to the CSE a report on the mandatory profit-sharing plan, which details in particular the methods for calculating the amount of the special reserve (Art. D. 3323-13 of the Labor Code). In order to draw up this report, the CSE is entitled to seek the assistance of a chartered accountant (Art. D. 3323-14 of the Labor Code). In this case, there was a disagreement on the bearing of the cost of the expert’s assessment voted by the CSE. It is important to note that since the 2017 orders no legal provision addresses the issue of the financing of the expertise relating to the profit-sharing report. In a decision of 5 April 2023, the Cour de cassation considers that the financing of this expert’s assessment should be entirely borne by the employer. To decide so, the Cour de cassation mainly based its decision on the fact that “the expert’s assessment, decided by the social and economic committee called to sit to examine the report relating to the profit-sharing plan to be presented to it by the employer within six months following the end of each financial year, is part of the recurrent consultation on the economic and financial situation of the company provided for in article L. 2315-88 of the Labor Code”. Consequently, the Cour de cassation affirms that the chartered accountant who is appointed in this context must be “paid by the employer in accordance with the terms of Article L. 2315-80, §1 of the Labor Code” (Cass. Soc., 5 April 2023, No. 21-23.427).
CSP ACCEPTANCE: Details on the deadline within which the employer must specify the reasons for the termination.
The termination of the employment contract resulting from the acceptance by the employee of a professional securing contract (CSP) must have a real and serious economic cause (Art. L. 1233-65 ; L. 1233-66 ; L. 1233-67 of the Labor Code). As a reminder, “the reasons set out in the letter of dismissal provided for in Articles L. 1232-6, L. 1233-16 and L. 1233-42 may, after notification thereof, be specified by the employer, either on his/her own initiative or at the request of the employee”. These details must be provided within fifteen days, by registered letter with acknowledgment of receipt or delivered against receipt (Art. R. 1233-2-2 of the Labor Code). On 21 September, the information document on the CSP as well as a letter explaining the economic reasons for the termination were given to employees threatened with redundancy. The employees joined the CSP on 27 September. On 9 October, the employer sent the employees a letter of notification of their dismissal by mail, stating as a reminder these economic reasons and indicating that their post was abolished. In a decision of 5 April 2023, the Cour de cassation indicates referring to the aforementioned articles, in an unprecedented way, the methods of assessing the period offered to the employer when he/she specifies the economic reason for a termination resulting from the acceptance by the employee of a CSP: “the document by which the employer informs [the employee] of the economic reason for the contemplated termination can be specified by the employer either on his/her own initiative or at the request of the employee, in the period of fifteen days following the latter’s joining the CSP“. Consequently, the Court considers that the employer had met this deadline by sending its letter on 9 October, i.e., less than 15 days after the employees joined the CSP (Cass. Soc., 5 April 2023, No. 21-18.636).
MULTI-REPLACEMENT CDD: Extension of the multi-replacement fixed-term contract experiment until 13 April 2025.
The Professionnal Future law of 5 September 2018 had introduced, on an experimental basis, between 1 January 2019 and 31 December 2020, the possibility for companies to conclude a single short contract (CDD or assignment contract) to replace several employees absent simultaneously or successively. The Labor Market law of 21 December 2022 resumed this experiment for a period of two years, from the publication of the decree on 13 April 2023. The decree lists the national collective agreements concerned. This list has increased: 19 new branches have been added to the 11 sectors concerned by the previous experiment.
ABANDONMENT OF POSITION: Publication of the decree relating to the presumption of resignation in the event of abandonment of post.
Until now, an employee who abandoned their position could – for this reason – be dismissed and thus claim unemployment benefits. Under the terms of the Labor Market law of 21 December 2022, an employee who abandons their position must be presumed to have resigned, and may therefore no longer benefit from unemployment benefits. Thus, the new article L. 1237-1-1 of the Labor Code and the decree of 17 April 2023 provide that an employee who has abandoned their position and who has not resumed it after having been given formal notice to do so , and to justify their absence within 15 days, is presumed to have resigned at the end of this period. The Q&A of the Ministry of Labor specifies that the employer must implement this new measure, and is no longer “able to initiate a dismissal procedure for fault“.