NewsletterNewsletter No.185 – May 2024
SUBSTITUTION AGREEMENT: A substitution agreement may be applied retroactively, as long as it does not deprive the employee of their legal rights.
Following a business transfer, a substitution agreement provided for the retroactive termination of the remuneration scale set by the relevant collective agreement. An employee whose employment contract had been transferred appealed to the labor court, considering that the provisions of the relevant collective agreement should have remained in effect for a year following the end of the legal notice period. Taking into account the fact that in this case neither the amount of remuneration nor its structure was modified, the French Supreme Court (Cour de Cassation) dismissed the employee’s claims, on the grounds “that a substitution agreement may provide for provisions to act retroactively on the date the convention or previous agreement is challenged, provided that these provisions do not deprive an employee of their legal rights, in particular the provisions of article L. 2261-14, paragraph 1, of the Labor Code, or of the principle of equal treatment for a period prior to the entry into force of the substitution agreement” (Cass. Soc, 15 May 2024, No. 22-17.195).
DISCIPLINARY PROCEDURE: When statutory or conventional rules provide for it, referring a case to a Disciplinary Council interrupts the one-month period for notifying the disciplinary sanction.
Article L.1332-2 of the Labor Code provides that a disciplinary sanction must be imposed within the month following the preliminary interview. In this case, an Air France employee, summoned to an interview preliminary to a disciplinary sanction, was informed, fifteen days later, that the matter was referred to the disciplinary council, in accordance with the collective agreement for the company’s ground staff. The employee refused this referral and was dismissed for serious misconduct more than a month after the interview. The employee subsequently contested her dismissal, arguing that the one-month period had not been respected. The Cour de Cassation rejected her argument, considering that the employer can exceed the one-month period set by Article L. 1332-2 of the Labor Code, to consult a disciplinary body, as long as the employee is informed of this referral before the expiration of the period. In the event of the employee’s refusal, a new one-month period begins from the date of the refusal (Cass. Soc., 2 May 2024, No. 22-18.450).
WORK ACCIDENTS: The death of an employee at home due to a heart attack occurring during telework hours constitutes a work accident.
Based on the provisions of Articles L. 411-1 of the Social Security Code and Article 21 of Order No. 2017-1387, the Court of Appeal of Nîmes ruled that an accident occurring at the telework location and during working hours is presumed to be a work accident. Indeed, the Court of Appeal considered that “having occurred at the time and place of work, the accident of which [V] [N] was the victim benefits from the presumption of being attributable to work. The Sarl [4] does not produce any element likely to usefully challenge this presumption. The trial judges were right in considering that [V] [N] was the victim of a work accident which led to his death and that he was covered under professional legislation by the primary health insurance fund” (CA Nîmes, 2 May 2024, No. 23/00507).
PROOF OF DISCRIMINATION: The material impossibility for an employer to take into account the disabled worker status of an employee and to offer the necessary accommodations does not, in itself, constitute discrimination.
In a decision rendered in plenary session, the Cour de Cassation stated as a reminder that the judge, when faced with a discrimination claim based on disability, must first determine whether the employee presents factual elements suggesting the existence of discrimination, such as the refusal, even implicit, of the employer to take concrete and appropriate measures for reasonable accommodations possibly requested by the employee or recommended by the occupational doctor or by the social and economic committee. It is only then that the judge will be required to determine “whether the employer demonstrates that their refusal to take these measures is justified by objective elements unrelated to any discrimination based on disability, due to the material impossibility to take the measures requested or recommended or due to the disproportionate nature, for the company, of the costs resulting from their implementation” (Cass. Soc., 15 May 2024, No. 22-11.652).
LEAVE FROM WORK: Engaging in sports activities during a leave from work, without express and prior authorization, results in the loss of daily allowances.
In a decision of 16 May 2024, the Cour de Cassation stated as a reminder that, in accordance with the provisions of Article L.323-6 of the Social Security Code, an employee on leave from work who engages in physical or sports activities without the express and prior authorization of the prescribing doctor, loses their right to receive daily allowances and must, where applicable, reimburse the amounts received. The issuance of express authorization, yet after the leave from work, is insufficient to avoid the loss of these allowances (Cass. Soc., 16 May 2024, No. 22-14.402).
RIGHT OF WITHDRAWAL: The employer may make a salary deduction, if they consider the exercise of the right of withdrawal to be abusive.
In a decision of 22 May 2024, the Cour de Cassation ruled that, when the conditions for exercising the right of withdrawal are not met, the employer can make a salary deduction against the employee without having to first refer the question of the merits of the exercise of this right by the employee to the judge. The employer is thus free to make a salary deduction, if they consider the exercise of the right of withdrawal to be abusive. Nevertheless, the question of the assessment made by the employer of the merits of the exercise of the right of withdrawal may be, as in this case, referred to the judges a posteriori (Cass. Soc., 22 May 2024, No. 22-19.849).
UNFITNESS FOR WORK: The limitation period for the action for payment of salaries runs from the date each salary claim becomes due.
In a decision of 7 May 2024, the Cour de Cassation ruled that the three-year limitation period for the action for payment of salaries, the payment of which must be resumed by the employer from the expiration of the one-month period following the declaration of unfitness, runs from the due date of each salary claim until the termination of the employment contract. It thus considers that for employees paid monthly, “the due date of the salary corresponds to the usual date of payment of salaries in force in the company and concerns the entire salary relating to the concerned month”. This solution, which adopts a sliding limitation period, conforms with previous case law (Cass. Soc., 24 April 2013, No. 12-10.196), the Cour de Cassation having already specified that the starting point of the limitation period is the date on which the salary claim has become due (Cass. Soc., 7 May 2024, No. 22-24.394).