MOBILITY CLAUSE: Control of the interference with personal and family life when implementing a mobility clause.
Although he had signed a mobility clause, an employee refused his transfer, citing excessive interference with his personal and family life. As a result, the employer had dismissed him for real and serious cause. The employee then referred his case to the labor court, considering that his refusal was legitimate. The Court of Appeal of Versailles had however ruled that the dismissal was justified, the mobility clause having been implemented fairly by the employer. In a decision of 28 June 2023, the French Supreme Court (Cour de Cassation) stated as a reminder that it is up to the judge to verify “whether the implementation of the mobility clause did not interfere with the employee’s rights to a personal and family life and whether such interference could be justified by the task to be performed and was proportionate to the aim sought” (Cass. soc., 28 June 2023, No. 22-11.227).
CAREER DEVELOPMENT INTERVIEW: The career development interview and the evaluation interview may take place on the same day.
Where the career development interview of the employee with his employer is compulsory and devoted to his career prospects (Labor Code, Art. L. 6315-1), the evaluation interview relating to his performance is not compulsory, even if it can be imposed by a collective agreement (Cass. soc., 10 Nov. 2009, No. 08-42.114). If a career development interview cannot relate to the employee’s performance, and therefore constitute at the same time an evaluation interview, nothing provided that these two interviews could not be held at a close date. This is actually what the Cour de Cassation ruled in a decision of 5 July 2023: thus, Article L. 6315-1 of the Labor Code “does not preclude the holding on the same date of the evaluation interview and the career development interview provided that, during the latter, the evaluation issues are not raised” (Cass. soc., 5 July 2023, No. 21-24.122).
COLLECTIVE AGREEMENT: An employee may request the application of the collective agreement included in his employment contract.
Due to his part-time employment contract, an employee was subject to a collective agreement different from that of the company for which he worked. While the employer invoked the collective agreement applicable to the company, the employee demanded that the collective agreement mentioned in his employment contract be applied to him. In a decision of 5 July 2023, the Cour de Cassation ruled, applying the principle according to which “contracts legally formed take the place of law for those who made them” (Civil Code, Art. 1103), that “if, in the collective labor relations only one collective agreement is applicable, which is determined by the main activity of the company, in individual relations, the employee, failing to invoke this agreement, may request the application of the collective agreement mentioned in the employment contract” (Cass. soc., 5 July 2023, No. 22-10.424).
CSE CHARTERED ACCOUNTANT: The CSE chartered accountant cannot interview employees without the employer’s agreement.
On the occasion of its annual consultations, a CSE wanted to carry out an assessment. Wishing to reduce the costs thereof, the company had referred its case to the court of justice. The CSE and the chartered accountant contested this referral, arguing that the right to demand interviews with employees stemmed from Articles L. 2315-82 and L. 2315-83 of the Labor Code. However, in a decision of 28 June 2023, the Cour de Cassation ruled, referring to these same articles, that “the chartered accountant, appointed in relation with the consultation on social policy, working conditions and employment, if he considers that the hearing of certain employees of the company is useful for the accomplishment of his mission, can only proceed with it on the condition of obtaining the express agreement of the employer and the concerned employees” (Cass. soc., 28 June 2023, No. 22-10.293).
CSE MEETINGS: Only a member of the CSE may contest a modification of the agenda made outside the conventional and legal deadlines.
Three days before the meeting of the CSE, one of its members had requested the addition to the agenda of a vote of a resolution on a right of economic whistle-blowing. The employer had refused this addition, considering it contrary to the legal provisions (Labor Code, Art. L. 2315-30), and to the collective agreement of the company which imposed a minimum notice period of 5 business days before a CSE meeting is held to communicate the agenda. The subject having nonetheless been discussed during the meeting, the employer had referred the case to the labor court in order to obtain its nullity. However, in a decision of 28 June 2023, the Cour de Cassation held that “only members of the staff delegation [may] rely on non-compliance with the contractual deadline, so that the absence of an indication on the agenda (…) of the triggering of the whistle-blowing procedure was not a ground for the irregularity of the committee’s deliberation” (Cass. Soc., 28 June 2023, No. 22-10.586).
DISMISSAL: An employer must prove that the dismissal of an employee is not linked to his request for professional elections.
An employee had been dismissed shortly after asking for the organization of professional elections. Contesting his dismissal, the employee argued that his request to organize the elections was the reason for his dismissal, and that no real and serious cause emerged from his letter of dismissal. While the trial judges had rejected this plea, the Cour de Cassation ruled on the contrary, in a decision of 28 June 2023, that “the dismissal pronounced was not justified by the existence of a real and serious cause, [and that] the dismissal procedure had been initiated [on] the date on which the employer had received his request to organize the elections for staff representatives, so that it was up to the employer to demonstrate the absence of a link between the employee’s request to organize professional elections and the pronounced dismissal” (Cass. soc., 28 June 2023, No. 22-11.699).
WHISTLE-BLOWING: New CNIL reference frame for the processing of personal data in the context of whistle-blowing systems.
On 6 July 2023, the CNIL implemented a new reference frame relating to the processing of data carried out in relation with whistle-blowing systems. It is intended for any body that sets up a system for the collection and internal management of whistle-blowing alerts involving the processing of personal data, as well as for any third-party entity that offers a service for receiving, processing and storing alerts. The reference frame makes it possible to supervise these entities and ensure the compliance of their practices with the GDPR and legal provisions. This concerns whistle-blowing systems in connection with corruption or influence peddling and any other internal whistle-blowing system set up without regulatory constraints or to comply with an obligation resulting from foreign law. The reference frame is not binding, but entities that deviate from it should justify and document this choice and the measures taken as a result (Cnil deliberation No. 2023-064, 6 July 2023).