NewsletterNewsletter No. 188 – August 2024
STAFF REPRESENTATIVES : The absence of exceptional circumstances justifying the completion of additional delegation hours justifies a proportional deduction from salary.
In application of the provisions of Article L. 2143-17 of the Labor Code, delegation hours are, by law, considered as working time and paid on the normal due date. However, when the employee union delegate exceeds their hour quota without being able to justify it “by exceptional circumstances“, the employer may make a “deduction from salary […] under the condition of complying with the seizable portion of the salary”, provided for in Article L. 3251-3 of the Labor Code (Cass. Soc, 10 July 2024, No. 23-11.770).
REDEPLOYMENT OF AN EMPLOYEE DECLARED FIT FOR PART-TIME WORK : An employee who refuses a modification of their employment contract following the opinion of the occupational doctor is entitled to the maintenance of their salary.
The provisions of Article L. 1226-8 of the Labor Code specify that in the event of a suspension of the employment contract due to an occupational accident, the employee returns, at the end of the suspension, to their position or to a similar position with equivalent remuneration. In this decision, the French Supreme Court (Cour de Cassation) specified the conditions for maintaining the salary in the event of an opinion of suitability for part-time work. In this case, an employee who suffered an occupational accident was declared fit for part-time work by the occupational doctor. She was offered a new position in line with these recommendations. As the new position involved a modification in her working hours which constitutes an essential element of her employment contract, the employee’s consent was required. The Cour de Cassation ruled that “when an employee refuses the modification of their employment contract resulting from the recommendations of the occupational doctor“, the employer must maintain the contract and the employee may “claim to maintain their salary until the termination of the contract” (Cass. Soc, 19 June 2024, No. 22-23.143).
TRIAL PERIOD OF PERMANENT CONTRACT : The duration of fixed-term contracts, even discontinuous ones, is deducted from the potential trial period of the permanent contract following them.
Pursuant to Article L. 1243-11 of the Labor Code, when an employee is hired on a permanent contract following one or more fixed-term contracts, the duration of these contracts is deducted from the trial period. In the case decided on 19 June 2024, an employee had been hired under three successive fixed-term contracts, separated by short interruptions, before being hired on a permanent contract. For the employer, the interruptions between the different fixed-term contracts prevented the duration of the fixed-term contracts from being deducted from the trial period of the permanent contract. The Cour de Cassation ruled on the contrary that the employee having worked “as a nurse in different care services“, there was “no functional discontinuity, from which it followed that the same employment relationship had continued with the employer […], thus the duration of the three fixed-term employment contracts had to be deducted from the trial period” (Cass. Soc, 19 June 2024, No. 23-10.783).
ECONOMIC DISMISSAL: Employees dismissed within 30 days preceding the first meeting for the implementation of the Employment safeguard scheme (PSE) may request payment of the supra-legal compensation provided for by the PSE.
In this case, a company carried out two dismissal procedures for economic reasons. The first only concerned two employees, so no PSE was discussed. However, as part of a second procedure, initiated only 25 days later, the Social and Economic Committee (CSE) was consulted with regard to the implementation of a PSE. The Cour de Cassation ruled that the first two employees, dismissed “less than thirty days before the CSE consultation meeting“, were entitled to obtain compensation for the harm resulting from the non-application of the PSE, based on the principle of equality of treatment among employees. Indeed, according to the Cour de Cassation, “the employee, who was in the same situation as his colleagues targeted by the mass redundancies project, due to the same economic difficulties, had been unjustly deprived of the benefit of the supra-legal dismissal compensation provided for by the Employment safeguard scheme for employees whose seniority was equivalent to his own” and was therefore entitled to seek compensation (Cass. Soc, 26 June 2024, No. 22-20.521).
DISCIPLINARY AUTHORITY OF THE EMPLOYER : A human resources director of a branch does not have the authority to sanction their hierarchical superior.
Under Article L. 1332-4 of the Labor Code, an employer has a period of two months, from the date the wrongful acts became known to them, to initiate disciplinary proceedings against an employee. The Cour de Cassation specified that the starting point of the limitation period could only run from the discovery of the facts by the employer, namely: the one having “hierarchical authority over the author of the breaches” and having the “qualification to control the employee or monitor their activity”, which excludes any person subordinate to them. In this case, the human resources director of a branch not being the hierarchical superior of the branch director, and not having the authority to sanction him, the discovery of the branch director’s wrongful acts by the HR director was not sufficient to trigger the limitation period (Cass. Soc, 26 June 2024, No. 23-12.475).
HARASSMENT AND INTERNAL INVESTIGATION: The implementation of an internal investigation is not mandatory in the event of harassment allegations.
When acts of harassment are reported, it is up to the employer to take all “sufficient measures to preserve the health and safety” of their employees. It is up to the trial judges to determine whether the employer’s actions were sufficient. The Cour de Cassation in this case acknowledged that “notwithstanding the absence of an internal investigation, [the employer] had not failed in their safety obligation”. Thus, the absence of implementation of an internal investigation is not de facto sufficient to characterize the employer’s failure to fulfill their safety obligation. The internal investigation, however, remains one of the elements allowing the employer to correctly address any reported acts of harassment (Cass. Soc, 2 June 2024, No. 23-13.975).