NewsletterNewsletter No.197 – May 2025
MANAGERIAL HARASSMENT: Persistent misconduct justifies dismissal for serious misconduct, despite the employer’s failure to take action.
An employee in a managerial position was dismissed for serious misconduct due to managerial practices deemed harmful. The employer reproached the employee for persisting, despite a prior disciplinary sanction, in an authoritarian, rigid, and demeaning behavior, causing suffering at work within his team. The employee contested the wrongful nature of his dismissal. The French Supreme Court (Cour de Cassation) reiterated that serious misconduct is established when the alleged conduct makes it impossible for the employee to remain with the company. In this case, the repetition of the wrongful behavior, despite the prior warning, was “of such a nature, regardless of the attitude of the employer who was bound by an obligation of safety in terms of protecting the health and safety of workers, as to constitute behavior making it impossible for him to remain in the company” (Cass. Soc. 6 May 2025, No. 23-14.492).
TRANSFER BY AGREEMENT: The amendment of 28 January 2011, to the collective bargaining agreement for prevention and security companies does not require the new employer to assume the obligations of the former employer.
A company operating in the private security sector was placed in judicial liquidation following a loss of contract. As a result of this procedure, twenty-five employees were taken over by the new company which was awarded the security contract to which they were initially assigned. These employees brought an action before the labor court to have various claims, including back pay for overtime and compensation for undeclared work, assessed against the liabilities of the liquidated company. The AGS and Unedic contested the decisions, arguing that the transfer of contracts pursuant to the collective bargaining agreement for prevention and security companies constituted a transfer by agreement, precluding any termination of the initial employment contract. The Cour de Cassation held that “it results from the combination of Articles L. 8223-1 of the Labor Code and 3.1.1 of the amendment of 28 January 2011 to the agreement of 5 March 2002 relating to the takeover of staff governed by the collective agreement for prevention and security companies of 15 February 1985 that if the amendment to the employment contract concluded with the incoming company includes all the contractual clauses of the employment contract of the employee taken over following the loss of the contract, the employment relationship, within the meaning of the first of these texts, with the outgoing company is terminated, so that (…) the latter (…) is liable for compensation for undeclared work.” (Cass. Soc. 21 May 2025, No. 23-16.540).
LIMITATION PERIOD: The limitation period for an action contesting the termination of an employment contract runs from the date the employee receives the letter notifying the termination.
By letter sent on 9 August 2019 and received on 10 August 2019, an employee was dismissed for serious misconduct. On 10 August 2020, the employee brought a claim with the labor court regarding the performance and termination of his employment contract. His former employer argued that the claims relating to the termination of the employment contract were time-barred and that the action should have been brought no later than 9 August 2020. The Cour de Cassation stated as a reminder that “any action relating to the termination of the employment contract is subject to a twelve-month limitation period starting from the notification of the termination (…) the date of notification by post is, for the sender, the date of dispatch, and, for the recipient, the date of receipt of the letter. It follows that the limitation period for the action contesting the termination of the employment contract runs from the date of receipt by the employee of the registered letter with acknowledgment of receipt notifying the termination.” (Cass. Soc. 21 May 2025, No. 24-10.009).
CLASS ACTION: Any failure by an employer to meet their legal or contractual obligations may be the subject of a class action.
Law No. 2025-391 containing various provisions to align French law with European Union law entered into force on 3 May 2025, following approval by the Constitutional Council (Cons. const. 2025-879 DC 29-4-2025). This text provides, in particular, that class actions are extended to all breaches by employers of their legal and contractual obligations, and these actions may seek to put and end to the breach and/or, where applicable, obtain compensation for the harm suffered. Prior to initiating such a class action, the claimant must formally notify the employer to cease the alleged breach. A period of six months must then elapse from the date of this notice before the class action may be brought. This procedure may be initiated by trade union organizations representing employees, associations approved for this purpose and, for actions aimed at ending the breach, non-profit associations declared for at least two years, the Public Prosecutor’s Office being also empowered to bring such actions.
ON-CALL DUTY AND WORKING TIME: On-call duty periods qualify as working time when they impose constraints on employees that significantly limit their freedom to manage their time and engage in personal activities.
A hotel guard was required to be on call an average of four nights per week, from Friday evening to Tuesday morning, and was housed in a reserved staff room. Following his dismissal, the employee brought an action before the labor court seeking back pay for overtime for his on-call duty periods, considering that they constituted actual working time. The French Supreme Court aligned itself with European case law, in particular de decision of the CJEU of 9 March 2021, and reaffirmed that it is necessary to assess whether, during the on-call duty periods, the employee was subject to “constraints of such intensity that they affect, objectively and very significantly, their ability to freely manage the time during which their professional services are not required and to engage in personal activities” (Cass. Soc. 14 May 2025, No. 24-14.19).
VOLUNTARY DEPARTURE PLAN: The proposal of a CSP is not mandatory within the framework of a voluntary departure plan.
A company had implemented a job protection plan excluding any dismissals, solely relying on voluntary departures. Two employees had opted into the plan by signing an amicable termination agreement, conditional on their being hired on a permanent contract by another company. Their employment contracts had been terminated by mutual agreement following a secondment period. However, France Travail had reclassified this termination as a dismissal for economic reasons and sought payment from the company of the specific contribution related to the lack of proposal of a professional security contract (CSP). The Cour de Cassation rejected this analysis and reiterated that “the provisions relating to the professional security contract are not applicable to the termination of an employment contract resulting from the conclusion of an amicable termination agreement entered into pursuant to a job protection plan based on voluntary departures that does not contemplate any dismissals.” Therefore, the employer was not required to offer it (Cass. Soc. 21 May 2025, No. 22-11.901).