NewsletterNewsletter No.189 – September 2024
TELEWORK: Teleworking from abroad without authorization may constitute serious misconduct.
An employee hired on a permanent contract (CDI) in May 2019 as a flow and compliance analyst obtained, at the end of her paid vacation spent in Canada in the summer of 2020, her employer’s agreement to temporarily telework from that country while waiting for a new return flight, her initial flight having been canceled. Wishing to settle permanently in Canada, she requested a mutual termination of her employment contract, which was refused, before informing her employer of her intention to resign with an end date of 31 December 2020. Then, citing a difficult financial situation, the employee requested to continue her employment contract, teleworking from Canada until mid-February 2021. Despite the lack of a favorable response, the employee did not resign. When questioned by her superior in March 2021 about her reduced activity in the morning, the employee finally informed him that she was in Canada and asked to telework on staggered hours from that country. The employer refused and asked her to return to her workplace about ten days later, which she did not do. The employee was then dismissed for serious misconduct. Rightly so, according to the Labor Court of Paris, which relied not only on the risks incurred by the company due to the employee’s activity on Canadian territory without any authorization from the Canadian authorities and in violation of the rules on the General Data Protection Regulation (GDPR), but also on a certain number of facts which constituted, on the part of the employee, a violation of the obligations resulting from her employment contract, in particular the fact of not having obtained the prior agreement of her employer to telework from Canada, or of having adopted an unfair attitude by concealing this telework from him (Court of Paris, 1 August 2024, RG No. 21/06451).
UNFITNESS FOR WORK: The redeployment proposal in accordance with the recommendations of the occupational doctor is presumed to be fair.
In this case, an employee contested his dismissal for unfitness for work, alleging a failure to comply with the redeployment obligation. The employer had offered him nine positions within the group, in accordance with the recommendations of the occupational doctor, but which the employer had refused as they were all geographically distant from his home. The Court of Appeal ruled in his favor after noting that there were many other positions to be filled and that the company did not produce the single staff register for its establishments located in Normandy. The Court had deduced from this that by failing to provide proof that there were no available positions in Normandy compatible with the employee’s remaining qualifications and physical abilities, the employer had not complied with their redeployment obligation under sufficiently fair and serious conditions. The French Supreme Court (Cour de Cassation) considered that the Court of Appeal reversed the burden of proof and ruled on the contrary that, when an employer offers a suitable position, the obligation to seek redeployment is deemed to be satisfied and it is then up to the employee to demonstrate that this offer was not made fairly (Cass. Soc. 4 September 2024, No. 22-24.005).
CSE (SOCIAL AND ECONOMIC COMMITTEE) EXPERTISE: A court of justice may rule that the expert report requested by the CSE is abusive.
The CSE of a call center triggered an economic alert procedure, within the framework of which it decided to use a chartered accountant. The employer brought the case before the court of justice to annul the CSE’s decision. The court ruled in favor of the employer, considering that the decision to use an expert as part of the economic alert procedure was abusive “in consideration of the fact that it had been preceded, less than two months before, by the appointment of the same firm to carry out an expert report as part of the annual information-consultation on the company’s economic and financial situation” and “that each expert report represented an expense of 30,000 euros that it seemed necessary to rationalize in view of the company’s economic difficulties” (Cass. Soc, 11 September 2024, No. 23-12.500).
PERSONAL DISMISSAL: An employee cannot be dismissed for serious misconduct due to acts attributable to her partner.
An employee went to her company’s parking lot with her partner early in the morning before starting her work day. An altercation took place between her partner and the employee’s supervisor. The employee was dismissed for serious misconduct due to this incident, which she contested. For the Court of Appeal, her disciplinary dismissal was justified, since she was on leave on the day of the incident and had no reason to be in the company’s parking lot early in the morning. She had gone there with her partner, a former employee of the company dismissed for acts of violence committed against another supervisor. However, this decision was overturned by the Cour de Cassation, which reiterated a well-established principle according to which the misconduct held to be the cause of dismissal can only result from an act attributable to the employee. The Court further noted that the altercation, which had taken place outside of work hours and off company premises, had involved the employee’s hierarchical superior and her partner. The Cour de Cassation concluded that the employee could not be reproached for any misconduct personally attributable to her, so that a disciplinary dismissal could not be decided against her (Cass. Soc. 11 September 2024, No. 23-15.406).
MATERNITY LEAVE: An employer’s failure to comply with the obligation not to make an employee work during her maternity leave automatically entitles the employee to compensation.
An employee requested payment of damages for breach of the obligation to ensure safety and health at work due to work requested during her maternity leave. Her claim was dismissed by the Court of Appeal on the grounds that she could not prove any damage. However, the Cour de Cassation disagreed: the mere finding of the employer’s failure to fulfill their obligation to suspend all work during maternity leave entitles the employee to compensation (Cass. Soc. 4 September 2024, No. 22-16.129).
BREAK TIME: The mere finding of non-compliance with daily break times automatically entitles the employee to compensation.
An employee requested the judicial termination of her employment contract for various reasons. In particular, she requested compensation for breach of the regulations on working hours, since the employer had not complied with the mandatory 20-minute break after six hours of work. The trial judges rejected the employee’s request, since she did not demonstrate that she had suffered any harm. However, the Cour de Cassation disagreed: the mere finding of non-compliance with the rules relating to break times entitles the employee to compensation, without the employee having to prove actual harm. The Court also adopted the same solution for having made the employee work while she was on sick leave, making her come to the workplace on three occasions to perform a professional task punctually and for a limited period (Cass. Soc. 4 September 2024, No. 23-15.944).