NewsletterNewsletter No.183 – March 2024
COLLECTIVE AGREEMENT AND ECONOMIC SOCIAL UNITS (UES) : An agreement amending the scope of a UES is not an inter-company agreement.
Pursuant to Articles L. 2313-9 and L. 2232-36 et seq. of the Labor Code, an agreement amending the scope of a UES is not an inter-company agreement. Therefore, all representative unions of the entities within the scope concerned must be invited to the negotiations, and not only the unions representing the entire scope covered (Cass. Soc. 6 March 2024, No. 22-13.672).
DISMISSAL OF AN EXPATRIATE EMPLOYEE: The sums owed to an expatriate employee, whose dismissal had been without real and serious cause, must be calculated with reference to the salaries received by the employee in their last position.
In accordance with the provisions of Article L. 1231-5 of the Labor Code, when an employee is dismissed by a foreign subsidiary and the parent company does not reinstate them, “the compensation in lieu of notice, the conventional compensation of dismissal, the salaries due under the redeployment leave allowance, and the damages for dismissal without real and serious cause that the employee may claim must be calculated with reference to the salaries received by the employee in their last position, notwithstanding any contractual provisions and provisions of the applicable collective agreement less favorable than the legal rule.” In this case, the sums owed to the employee should therefore have been calculated based on the expatriate salary in Morocco (Cass. Soc. 6 March 2024, No. 22-19.879).
MUTUALLY AGREED TERMINATION: The signing of a mutually agreed termination agreement on the same day as the meeting does not result in the agreement being null and void.
Article L. 1237-12 of the Labor Code does not establish a time limit between the meeting during which the parties agree to terminate the employment contract and the signing of the termination agreement. The French Supreme Court (Cour de Cassation) holds that “the court of appeal, which noted that the meeting had taken place before the signing of the termination agreement and ruled out any defect in the consent, legally justified its decision” (Cass. Soc. 13 March 2024, No. 22-10.551).
LIMITATION PERIOD: The limitation period applicable to a claim depends on its nature.
It is settled case law that the limitation period depends on the claim which is the subject of the dispute (see notably the first ruling on this issue: Cass. Soc. 19 December 2018, No. 16-20.522). In this case, the French Supreme Court considers that an employee’s claim seeking the conversion of their intermittent employment contract into a full-time employment contract is to amount to a claim for salary payment. Consequently, “the duration of the limitation period being determined by the nature of the claim invoked, the action for a payment of back pay based on the conversion of an intermittent employment contract into a full-time employment contract is subject to the three-year limitation period provided for in Article L. 3245-1 of the Labor Code” (Cass. Soc. 13 March 2024, No. 22-14.004).
SEXUAL HARASSMENT: The sexual behavior of an employee who has had an impeccable career makes it impossible for them to remain in the company.
The Cour de Cassation rules that sending messages and making sexual proposals to subordinates constitutes sexual harassment since such messages create an intimidating or offensive environment. Thus, the French Supreme Court rules that such actions constitute serious misconduct, regardless of the employee’s seniority or lack of disciplinary history. The Court, however, qualifies its position regarding the employee’s variable remuneration claim: “having adopted towards the employee an unpleasant, inappropriate, and habitual behavior, particularly unsuitable for someone in a position of responsibility towards the young women contacted, behavior described as inappropriate, i.e., behavior lacking a direct and close connection to a professional risk investment activity, the court of appeal correctly deduced that this behavior does not constitute a breach of the requirements of good repute provided for by legal provisions or the alleged professional misconduct” (Cass. Soc. 13 March 2024, No. 22-20.970).
TERMINATION AND EMPLOYEES’ PRIVATE LIFE: A reason taken from an employee’s personal life cannot in principle justify disciplinary dismissal.
The Cour de Cassation confirms its consistent case law, according to which an employer cannot, in order to dismiss an employee, rely on the content of messages, which, “even if they had been sent via professional messaging, pertain to the employee’s personal life, since, on the one hand, these messages were part of private exchanges within a group of people and were not intended to become public, on the other hand, the expressed opinions by the employee had no bearing on her employment, her relations with colleagues or with clients, and it was not established that they were known outside the private context” (Cass. Soc. 6 March 2024, No. 22-11.016).
TERMINATION FOR UNFITNESS: An employer may dismiss an employee declared unfit if they justify the latter’s refusal of a position in line with the recommendations of the occupational doctor.
Pursuant to Articles L. 1226-2 and L. 1226-2-1 of the Labor Code, an employer is considered as having complied with their redeployment obligation when they dismiss an employee declared unfit and the latter refuses a job offer even though it complies with the recommendations of the occupational doctor. In this case, the Cour de Cassation overturns the appeal decision “which found there was no real and serious cause for the dismissal for unfitness of an employee who had refused a part-time position in line with the occupational doctor’s recommendations, proposed by the employer, on the grounds that it led, due to the resulting reduction in remuneration, to a modification of the employment contract that the employee could reasonably refuse” (Cass. Soc, 13 March 2024, No. 22-18.758).
JUDICIAL TERMINATION: In cases of judicial termination, the burden of proof regarding compliance with safety obligations falls on the employer.
According to Article 1353 of the Civil Code it is up to the employee, in the context of a request for judicial termination, to prove the failings that they attribute to their employer. However, the Cour de Cassation now intends to establish an exception to this principle, now considering that, in the context of a judicial termination based on a failure by the employer to fulfill their safety obligation, the burden of proof is reversed: “when the employee alleges a breach by the employer of the prevention and safety rules leading to the work accident in which they were injured, it is up to the employer to justify having taken all the measures provided for by articles L. 4121-1 and L. 4121-2 of the Labor Code” (Cass. Soc. 28 February 2024, No. 22-15.624).