NewsletterNewsletter No.186 – June 2024
OBLIGATION OF LOYALTY: The liaison between a staff representative and the HR manager constitutes a breach of the obligation of loyalty justifying the dismissal of the latter.
In a judgment of 29 May 2024, the French Supreme Court (Cour de Cassation) ruled that a site manager in charge of human resources who maintains a secret intimate relationship with an employee holding union and staff representation corporate offices breaches his obligation of loyalty, thus justifying his dismissal for serious misconduct. Indeed, the Cour de Cassation stated as a reminder that a reason taken from an 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 their employment contract. Such is the case here, since “by concealing this intimate relationship, which was related to his professional duties and likely to affect their proper exercise, the employee had breached his obligation of loyalty to which he was bound towards his employer and this breach made it impossible for him to remain in the company, regardless of whether damage to the employer or to the company is established or not” (Cass. Soc, 29 May 2024, No. 22-16.218).
MODIFICATION OF EMPLOYMENT CONTRACT: An employee responsible for a child with a disability can legitimately refuse a change in working hours.
In a judgment of 29 May 2024, the Cour de Cassation stated as a reminder that an employee can legitimately refuse a modification of their contract when such a modification excessively infringes upon their right to respect for their personal and family life. This was the case here, where an employee had refused his employer’s proposal to switch from night shifts to day shifts, due to the responsibility of caring for a severely disabled child. This reason was considered insufficient by the employer, who then proceeded to dismiss him. The Cour de Cassation considered, on the contrary, that this responsibility constitutes a “compelling family obligation”, justifying the refusal to change working hours. The dismissal carried out by the employer is therefore without real and serious cause (Cass. Soc, 29 May 2024, No. 22-21.814).
EVIDENCE AND ACCIDENT AT WORK: An unfair recording can be considered admissible to allow an employee to establish a work accident and an inexcusable fault.
In a decision of 6 June 2024, the Cour de Cassation applied its new case law concerning the admissibility of unfair evidence in a civil proceeding (Cass. AP, 22 December 2023, No. 20-20.648). In this case, to request recognition of a work accident and an inexcusable fault, an employee had produced a recording of the altercation with his employer, made without his knowledge, as well as its transcription by a bailiff. The Cour de Cassation admitted this evidence, although unfair, on the grounds that it met the two conditions set out in its 2023 ruling: the evidence was essential to the proper exercise of the right to evidence and it was proportionate to the aim pursued. Indeed, without the recording and its transcription, the elements (medical certificates and complaint filings) were insufficient to demonstrate that the employee’s injuries originated from the altercation with the employer. Additionally, the invasion of privacy suffered by the employer was not disproportionate, the Court of Appeal having noted that the altercation occurred in a place open to the public (Cass. Soc, 6 June 2024, No. 22-11.736).
MUTUALLY AGREED TERMINATION: The intentional concealment by the employee of information critical to the employer’s consent results in the nullity of the mutually agreed termination for lack of consent.
In a judgment of 19 June 2024, the Cour de Cassation confirmed the nullity of a mutually agreed termination for lack of the employer’s consent. Indeed, it considered that the intentional concealment by the employee of information critical to the employer’s consent (namely the employee’s plan to engage in a competing activity) with a view to signing a mutually agreed termination results in the nullity of the latter for lack of consent. The Cour de Cassation adds, in an unprecedented manner, that the annulment of the mutually agreed termination for lack of consent of the employer produces the effects of a resignation. The employee must therefore repay the mutually agreed termination compensation to his former employer, and pay compensation for the notice period not worked (Cass. Soc, 19 June 2024, No. 23-10.817).
ECONOMIC DISMISSAL: The fault of the employer at the origin of the economic difficulties deprives the dismissal of a real and serious cause.
In a judgment of 29 May 2024, the Cour de Cassation stated as a reminder that, when the economic difficulties invoked in support of a dismissal result from the employer’s wrongful actions, the dismissal is then devoid of real and serious cause. In this case, while the economic difficulties were established, they followed a decision by the employer to set up part of its activity without the necessary administrative authorization. This decision falling within his sole competence and responsibility, the economic difficulties therefore resulted from wrongful actions, thus depriving the dismissal of a real and serious cause (Cass. Soc, 29 May 2024, No. 22-10.654).
SEVERANCE PAY: Therapeutic part-time work must be neutralized for the calculation of severance pay.
In a judgment of 12 June 2024, the Cour de Cassation stated as a reminder that periods of work carried out within the framework of therapeutic part-time arrangements must, to avoid discrimination based on the employee’s health condition, be neutralized for the calculation of severance pay. It then specified that, in this context, the reference salary to be taken into account is that which the employee received before switching to part-time work and, where applicable, before the preceding sick leave (Cass. Soc, 12 June 2024, No. 23-13.975).
REMUNERATION BASED ON THE NUMBER OF DAYS WORKED (FORFAIT-JOURS) AND SYNTEC: Extension of the amendment of 13 December 2022
From 1 July 2024, amendment No. 2 of 13 December 2022 concerning the forfait-jours shall be applicable to all companies subject to the SYNTEC collective agreement. The amendment provides for several new features. On the one hand, it broadens the scope of the beneficiaries of the forfait-jours: this possibility is now open to executives falling under position 2.3 and receiving a salary at least equal to 122% of the minimum salary applicable to their classification. On the other hand, only one annual interview is now mandatory to monitor employees under forfait-jours arrangements. Finally, companies with more than 250 employees will have to appoint a disconnection representative responsible for sensitizing employees and employers to the importance of disconnection (Order of 12 June 2024, Official Journal of 20 June 2024).