NewsletterNewsletter No. 173 – May 2023
MORAL HARASSMENT: Characterization of moral harassment by the employee who intends to report it.
Since a decision of 13 September 2017 (No. 15-23.045), the French Supreme Court (Cour de cassation) requires the employee who intends to report moral harassment to clearly characterize it to benefit from protection against dismissal (Article L. 1152-3 of the Labor Code). In this case, an employee had been dismissed after having reported, by means of a letter addressed to the board of directors of her company, the actions of her employer, which had had the effect, according to her, of degrading her working conditions. Considering herself the victim of moral harassment, she referred her case to the labor court. Her employer argues that the employee, in her letter, had not clearly mentioned moral harassment, and that she could not therefore request to benefit from the protection provided for by the Labor Code, without showing bad faith. The Cour de cassation invalidated this reasoning, holding that “it is now necessary to rule that the employee who reports acts of moral harassment cannot be dismissed for this reason, regardless of his not characterizing said acts as moral harassment when they were reported, except in bad faith”. However, he must demonstrate the “obvious nature” of its existence, as the employer cannot legitimately ignore the report of moral harassment when it is made (Cass. soc., 19 April 2023, No. 21-21.053).
MUTUALLY AGREED TERMINATION: The signing of a mutually agreed termination constitutes a waiver of the verbal dismissal previously pronounced.
After having been verbally dismissed, an employee signed a mutual agreed termination with his employer. More than a year after its approval, he referred his case to the labor court to have it annulled. The employer then opposes Article L. 1237-14 of the Labor Code, which provides that a mutually agreed termination may be contested within a maximum period of 12 months following its approval, in order to be admissible. The employee claims that this rule is inapplicable to the present case, the agreement being based according to him on the verbal dismissal, which could then be contested within two years (a period reduced to 12 months since the facts). Resuming its position of 2015, the Cour de cassation rules “that by signing a mutually agreed termination, the parties had by mutual agreement waived the previous verbal dismissal invoked by the employee and that the limitation period provided for in Article L. 1237-14 of the Labor Code was applicable” (Cass. Soc., 11 May 2023, No. 21-18.117).
TELEWORK: Possibility of instituting a difference in treatment in the allocation of meal vouchers.
On-site workers and teleworkers benefit from equal treatment (Article L. 1222-9 of the Labor Code). In this case, a collective agreement allocated meal vouchers only to employees working on site, and not to those teleworking. The agreement also provided that employees who were partially teleworking would only receive meal vouchers for the days worked on site. In a decision of 11 May 2023 (No. 22/02913), the Court of Appeal of Versailles holds that this difference in treatment is justified. It specifies that trade unions are not admissible to request, in the name of the aforementioned principle of equality, the allocation of vouchers to all employees, as it concerns a “regularization of the situation of all teleworking employees “.
GOLDEN HELLO: Possibility of conditioning the golden hello on a presence clause, under penalty of a reimbursement pro rata temporis.
An employer had conditioned the payment of a golden hello on a presence clause for a certain period within the company, under penalty of a partial reimbursement of the bonus, in proportion to the time that the employee would not have spent within it. While an employee had resigned before the date provided for by the clause, the employer had asked him to reimburse part of the golden hello. In a decision of 11 May 2023, the Cour de cassation ruled, pursuant to Article L. 1121-1 of the Labor Code, that a clause whose purpose is to retain the employee “may, without causing an unjustified and disproportionate infringement to the freedom of work, make the acquisition of the full golden hello, independent of the remuneration for the employee’s activity, conditional on the employee’s presence in the company for a certain period of time (…) and provide for the reimbursement of the bonus in proportion to the time that the employee, because of his resignation, will not have spent in the company before the scheduled deadline” (Cass. Soc., 11 May 2023, No. 21-25.136).
DISMISSAL FOR A PRIVATE MATTER: The dismissal of an employee convicted of sexual assault that caused a lasting turmoil in the company is justified.
The employee has the right to privacy, his actions outside his working hours cannot constitute a fault, unless an objective disturbance to the proper functioning of the company is consequently characterized (Cass. soc. 11/30/2005, No. 04-13.877). In this case, an employee had been convicted of sexual assault on minors in the context of his activities as a football coach in a club. Despite a 3-year incarceration and a leave from work of several months, a lasting turmoil remained within the company where he worked. More than 40 employees went on strike to demonstrate their disagreement on his return. In a decision of 13 April 2023, the Cour de cassation concluded that “the employee’s criminal conviction had created an objective disturbance to the proper functioning of the company and justified the dismissal for real and serious cause” (Cass. soc., 13 April 2023, No. 22-10.476).
SUNDAY REST: The “JO 2024” law provides a derogation from the principle of Sunday rest, for the time of the Olympic Games.
Weekly rest prohibits working more than six consecutive days per week (Labor Code, Article L. 3132-1), and, for convenience, on Sunday (Labor Code, Article L. 3132-3). If legal and regulatory exemptions exist, none met the needs of customers and storekeepers during the very special period of the Olympic Games. Thus, Article 25 of the law relating to the Olympic and Paralympic Games sets up a system of prefectural derogation allowing “a retail establishment which provides goods or services” to open on Sundays. Only establishments located in the municipalities where the Olympic Games competition sites are located, as well as the surrounding municipalities, shall benefit from this derogation. This will only be valid for a period from 15 June to 30 September 2024. Similarly, if a derogation already exists, it cannot be combined with that specific to the Olympic Games. Furthermore, no employee may be discriminated against if he refuses such a request by his employer. If he accepts, however, he shall be entitled to remuneration at least equivalent to the double of his usual remuneration, and to an equivalent period of compensatory rest.