RECRUITMENT: An employer cannot demand to know the age of a job candidate if he does not demonstrate that it is an objective and determining criterion for his or her hiring.
A candidate had been pre-selected for a position through an anonymous application. Having contacted the company to ask it to postpone her test day to a later date, said company asked her age, information which the candidate refused to communicate. The company then decides not to grant her another date for a test day. The candidate brought an action against the company for discrimination based on age, which justified itself by arguing in particular that the anonymity phase had ended at the time of the first convening, and that the age criterion was justified by the nature and requirements of the job. The French Supreme Court (Cour de cassation) is not of this opinion, ruling that “the court of appeal, which did not characterize that the knowledge of the date of birth of the candidate, at this stage of the recruitment process for a position of mobile agent facilitator, was objectively and reasonably justified by a legitimate aim, and that the refusal to reconvene the candidate following her refusal to communicate her date of birth was necessary and appropriate, did not give a legal basis to its decision” (Cass. soc., 6 September 2023, No. 22-15.514).
PAID LEAVE: Major case law developments concerning the right to paid leave.
Through a series of decisions rendered on 13 September 2023, the Cour de cassation brings national law into compliance with European law regarding paid leave. In a first decision, an employee was placed on leave following an occupational accident. According to Article L. 3141-5 of the Labor Code, only the first uninterrupted year of suspension of the employment contract gives the right to paid leave. By application of Article 31§2 of the CFR (Charter of Fundamental Rights of the European Union), the Cour de cassation rules that it is appropriate to exclude the application of these provisions “in that they limit to an uninterrupted duration of one year, the periods of suspension of the employment contract due to an occupational accident or occupational illness assimilated to actual working time during which the employee may acquire rights to paid leave, and to rule that the employee may claim their rights to paid leave in relation with this period” (Cass. soc., 13 September 2023, No. 22-17.638). In a second decision, three employees had been placed on non-occupational sick leave, and had not been able, in accordance with article Article L. 3141-3 of the Labor Code, to acquire paid leave. On the basis of Article 31§2 of the CFR, the Cour de cassation rules that it is appropriate to exclude the application of these provisions “in that they make the execution of effective work subject to the acquisition of rights to paid leave by an employee whose employment contract is suspended as a result of a leave from work due to non-occupational illness, and to rule that the employee can claim their rights to paid leave in relation with this period” (Cass. soc., 13 September 2023, No. 22-17.340). In a third decision, the employment contract of an employee was suspended due to illness, then medical and prenatal leave, then maternity leave, then parental education leave, which did not allow her to use her annual right to paid leave. Applying Directive 2010/18/EU of 8 March 2010, the Cour de cassation rules that “when the employee has been unable to take his annual paid leave during the reference year due to the exercise of his right to parental leave, the paid leave acquired on the date of the start of the parental leave must be postponed until after the date of return to work” (Cass. soc., 13 September 2023, No. 22-14.043). Finally, in a fourth decision, a service provider claimed, as part of the conversion of her situation into an employment contract, payment of paid leave that she had not been able to receive for ten years, which conflicted with the three-year limitation period for salary claims. Based on a decision of the CJEU of 22 September 2022 (case C-120/21), the Cour de cassation now rules that “the starting point of the limitation period for paid leave allowance must be set at the expiration of the legal or conventional period during which paid leave could have been taken as long as the employer justifies having completed the due diligence required by law in order to ensure that the employee is able to effectively exercise their right to leave.” (Cass. soc., 13 September 2023, No. 22-10.529).
PRE-DISMISSAL MEETING: The time between the convening and the holding of the pre-dismissal meeting starts when the notification to attend is presented.
An employee was notified to attend a pre-dismissal meeting scheduled for 24 January 2018. The notification, sent by registered letter, reached her domicile on 12 January. As the employee was absent, the mail was kept at the Post Office, where it was not collected until 22 January. Subsequently, the employee contested the dismissal procedure, saying she was only aware of the pre-dismissal meeting two days before it was held. The Cour de cassation, however, states as a reminder that “the five-day period began to run on 13 January 2018, the day following the presentation of the registered letter, so that on the date of the meeting set for the following 24 January, the employee had benefited from a period of five full working days” (Cass. soc., 6 September 2023, No. 22-11.661).
RULES OF EVIDENCE: Evidence of a breach reported by a “mystery client” is lawful, as long as the employee has been informed of such a procedure.
An employee was dismissed following the intervention of a “mystery client”, who noted several breaches on his part. The employee referred his case to the labor court, considering that this type of evidence was unlawful. The employer claimed to have previously informed the employee of the existence of this procedure, of its recurrence, and explained its operation as well as its objective. The Cour de cassation confirmed that “the employee had been, in accordance with the provisions of Article L. 1222-3 of the Labor Code, expressly informed, prior to its implementation, of this professional evaluation method implemented with regard to him by the employer, which resulted in the latter being able to use its results to support a disciplinary procedure” (Cass. soc., 6 September 2023, No. 22-13.783).
WHISTLE-BLOWING: The whistleblower denouncing a crime or an offense does not have to be disinterested.
An employee had been dismissed after informing the President of the company for which he worked that he intended to take steps to denounce irregularities relating to non-compliance with regulations committed there. The employer considered that the employee was not a whistle-blower, since he had acted out of self-interest by trying to blackmail him, which characterized his bad faith. In a decision of 13 September 2023, the Cour de cassation held on the contrary that “the employee who relates or testifies to facts constituting an offense or a crime of which he would have become aware in the exercise of his duties is not subject to the requirement to act in a disinterested manner” and “that he cannot be dismissed for this reason, except in bad faith, which can only result from knowledge of the falseness of the facts he denounces and not from the only circumstance that the facts denounced are not established” (Cass. soc., 13 Septembre 2023, No. 21-22.301).