PROTECTED EMPLOYEES: The employer who has not disputed the candidacy of an employee cannot exclude the prior authorization procedure for dismissal.
In accordance with the provisions of article L. 2411-7 of the Labor Code, the employee candidate for a professional election is protected from the moment the employer becomes aware of his candidacy. The employer must obtain an authorization from the labor inspector before any dismissal. He must nevertheless dispute this candidacy within a time limit of fifteen days before the court of justice (Art. R. 2324-24 anc. and R. 2314-24 of the Labor Code). Beyond this time limit, no further dispute is possible. It appears that the employee’s candidacy, “for the sole purpose of protecting himself from a potential intention on the part of the employer to terminate his employment contract“, cannot result in the loss of the protective status. In a decision of 18 October 2023, the French Supreme Court (Cour de Cassation) stated as a reminder that “the employer who has not disputed the regularity of the employee’s candidacy before the court within the legally prescribed time limit is not admissible to allege the fraudulent nature of the employee’s candidacy to exclude the procedure for administrative authorization of dismissal” (Cass. Soc. 18 October 2023, No. 22-11.339).
RIGHT TO EVIDENCE AND PRIVACY: The infringement of privacy must be essential to the exercise of the right to evidence.
“The illegality of a means of evidence does not necessarily lead to its rejection from the proceedings”: this is what the Cour de Cassation pointed out in two decisions of 4 October 2023, under Articles 6 and 8 of the European Convention on Human Rights. Indeed, since its “Petit Bateau” decision (Cass. Soc. 30 September 2020, No. 19-12.058), the Cour de Cassation has continued to confront the infringement of privacy (articles 8 ECHR and L. 1121-1 of the Labor Code), to the exercise of the right to evidence (articles 6 ECHR and 9 of the Code of Civil Procedure). The exercise of the right to evidence takes precedence over the infringement of privacy, when the latter was “essential to the exercise [of the right to evidence] and proportionate to the aim pursued”. In this case, employees, both nurses in a hospital, “indulged in the consumption of alcohol within the hospital, as part of festive evenings, sometimes when on duty” and had published on a Messenger group photographs and videos “in swimsuits at working hours and in the workplace” which attested to this. For the Cour de Cassation, “the court of appeal, which highlighted that the production of the photographs taken from the Messenger account infringing on the employee’s privacy was essential to the exercise of the right to evidence and proportionate to the aim pursued, namely the defense of the employer’s legitimate interest in the protection of the patients, entrusted to the care of nurses employed in his establishment, has (…) legally justified its decision” (Cass. Soc. 4 October 2023, No. 22-18.217 and No. 21-25.452).
FRENCH LANGUAGE: Working documents written in English are not enforceable against an employee.
A decision from the Cour de Cassation of 11 October 2023 states as a reminder, referring to Article L. 1321-6 of the Labor Code that documents containing obligations for the employee must be written in French. However, “this rule is not applicable to documents received from abroad or intended for foreigners”. The mere fact of a company being a subsidiary of an American group and using working documents in English cannot justify the foreign origin of these documents. It results therefrom that, if “the documents setting the objectives necessary for determining the contractual variable remuneration were not written in French“, the court of appeal should have investigated whether the documents came from abroad, before declaring them enforceable against the employee. “The court of appeal, which did not note that they had been received from abroad, violated the above-mentioned text (article L. 1321-6)” (Cass. Soc. 11 October 2023, No. 22-13.770).
PRIVACY: Traffic violations by an employee during personal trips with a company vehicle cannot justify dismissal for misconduct.
In this case, an employee who worked as a mechanic had been dismissed for misconduct due to traffic violations. These violations having been committed when he went to his place of work, and with the company vehicle, the connection to professional life was obvious to the employer. Nevertheless, the court of appeal considered that these “traffic violations had been committed during travel times during which the employee was not at the employer’s disposal and then, that the work tool placed at his disposal had not suffered any damage and that the behavior of the person concerned had not had an impact on the obligations arising from his employment contract as a mechanic”. From these findings, the Cour de Cassation ruled that “the traffic violations could not be considered as a lack of knowledge by the person concerned of his obligations arising from his contract, nor as being related to his professional life”. The ground based on the employee’s personal life cannot, in principle, justify a disciplinary dismissal, unless it constitutes a failure by the person concerned to fulfill an obligation arising from his employment contract, “the court of appeal rightly concluded that these facts of personal life could not justify a disciplinary dismissal” (Cass. Soc. 4 October 2023, No. 21-25.421).
BDESE (economic and social database): The employer is not required to organize a prior negotiation on the content of the economic and social database.
In a transfer and reorganization project, a company was summoned by members of its CSE (social and economic committee) and a trade union. The aim was, among other things, to suspend the establishment of the economic and social database, for lack of consultation. On this point, the applicants requested that a fair negotiation be ordered, under penalty, with the trade union organizations, in order to establish the content of the BDESE. The court of appeal of Versailles rejected the request and ruled “that the employer had not committed any breach in refraining from engaging in such a negotiation“, a position confirmed by the Cour de Cassation according to which “the content of the economic and social database being, in the absence of agreement, determined by legal and regulatory provisions, the prior negotiation of an agreement provided for in Article L. 2312-21 of the Labor Code is not mandatory” (Cass. Soc. 4 October 2023, No. 21-25.748).
ORDER OF DISMISSALS: The order of dismissals is not necessary if all the positions in the same category are abolished.
Article L. 1233-5 of the Labor Code provides for the obligation for the employer to establish an order of dismissals in the event of collective dismissal for economic reasons. However, it is only applicable “if the employer has to choose among the employees to be dismissed. This is not the case when all the positions in the same professional category are abolished” (Cass. Soc. 4 October 2023, No. 19-16.550).