NewsletterNewsletter No. 201 – September 2025
FREEDOM OF EXPRESSION: A letter sent by a lawyer refusing to sign a mutual termination agreement cannot be regarded as an employee’s exercise of her freedom of expression.
An employer had given one of its employees a mutual termination form. The employee, through her lawyer, refused the proposal. She was subsequently dismissed for professional incompetence, a decision she contested by sending a letter drafted by her counsel. In this letter, several grievances were raised against the employer, with the employee arguing in particular that her dismissal was caused by the intervention of her lawyer, which would constitute an infringement of her freedom of expression. The Employment Division of the French Supreme Court (Cour de Cassation) dismissed the employee’s claims, holding that “the mere fact that the employee’s lawyer, in the context of a proposal for mutual termination, had sent a letter to the employer refusing this proposal did not pertain to the employee’s exercise of her freedom of expression in the workplace” (Cass. Soc. 10 September 2025, No. 24-12.595).
PAID LEAVE AND SICKNESS: A sick leave period during a period of paid leave results in the carryover of such paid leave, provided that the employer is notified of the leave.
An employer sought reimbursement from an employee of an alleged overpayment of paid leave received during a period of sick leave. Relying on a European directive and the case law of the Court of Justice of the European Union, the Employment Division of the Cour de cassation dismissed the claim on the grounds that “the employee, who had been on sick leave periods during her paid leave periods, which were notified to the employer, was entitled to carry over the corresponding leave days, which could not be deducted from her paid leave balance” (Cass. Soc. 10 September 2025, No. 23-22.732).
PAID LEAVE: Paid leave must be included in the calculation of the threshold for triggering overtime when working time is calculated on a weekly basis.
Employees subject to a fixed weekly collective working time arrangement challenged the method of calculating their working time. They notably sought payment of overtime, arguing that paid leave periods should be treated as actual working time for the calculation of the overtime threshold. The Employment Division of the Cour de cassation upheld this reasoning, ruling that paid leave must be taken into account to prevent employees from being financially disadvantaged when taking their leave. The Court further held that it is appropriate “to exclude the application of the provisions of Article L. 3121-28 of the French Labor Code as they subordinate to the performance of actual working time, the hours taken into account for determining the overtime threshold applicable to an employee, who is subject to a weekly working time calculation, when the employee, during the relevant week, was partially on paid leave, and to rule that such employee may claim payment of overtime increases that they would have received had they worked during the entire week” (Cass. Soc. 10 September 2025, No. 23-14.455).
TRADE UNION DISCRIMINATION: Trade union discrimination constitutes damage per se.
At the end of his protection period, a former staff representative was dismissed for unfitness with no possibility of redeployment. He contested the validity of his dismissal and sought recognition of trade union discrimination. Despite the absence of evidence of any damage whatsoever, the Employment Division of the Cour de cassation upheld the employee’s claim, holding that “the mere finding of trade union discrimination gives rise to a right to compensation” (Cass. Soc. 10 September 2025, No. 23-21.124).
RELIGIOUS FREEDOM: Dismissal based on conduct relating to the employee’s religious freedom occurring in the private sphere is null and void.
An employee of a child protection association had been disciplined with a warning for giving a Bible to minors, and was then dismissed after repeating such actions. She sought the annulment of the sanctions imposed on her. The Court of Appeal held that her proselytising behavior towards a particularly vulnerable audience amounted to an abuse of her religious freedom and violated the principle of neutrality set out in the association’s internal regulations. The Employment Division of the Cour de cassation overturned this decision: “by ruling in this way, having noted that the employee, a service agent and not an educator, had taken the initiative of going to the hospital where the minor had been admitted in order to give her a Bible, which showed that the conduct alleged by the employer had occurred outside the employee’s working time and workplace and did not fall within her professional duties, so that the dismissal pronounced on disciplinary grounds in respect of acts falling within the employee’s personal life and her exercise of her freedom of religion was discriminatory and therefore void, the Court of Appeal violated the above-mentioned provisions” (Cass. Soc. 10 September 2025, No. 23-22.722).
DISMISSAL PROCEDURE: The employer is not required to inform the employee of their right to remain silent during the pre-dismissal interview.
The Constitutional Council (Conseil constitutionnel) received a Priority Question of Constitutionality (QPC) from the French Administrative Supreme Court (Conseil d’Etat) and the Cour de cassation concerning the provisions of Articles L. 1232-2 et seq. of the French Labor Code, which provide that the employer must obtain the employee’s explanations during the pre-dismissal interview. The issue was whether these provisions infringed the right to remain silent, as provided for in Article 9 of the 1789 Declaration of the Rights of Man. The Constitutional Council ruled in the negative, considering that the right to remain silent only applied to punitive sanctions and not “to measures which, taken in the context of a private law relationship, do not reflect the exercise of public authority prerogatives.” Thus, “neither the dismissal of an employee for personal reasons nor the sanction imposed by an employer in the context of an employment contract constitutes a sanction of a punitive nature within the meaning of the above-mentioned constitutional requirements.” Consequently, the contested provisions of the Labor Code were held to be in line with the Constitution (Constitutional Council, 19 September 2025, Nos. 2025-1160/1161/1162).
PAYSLIP: The mention of RTT days on the payslip is for informational purposes only, and the burden of proof of their actual grant lies with the employer.
An employee sought compensation for his RTT days before the labor court. The Cour de cassation confirmed its case law, reiterating that an employer cannot solely rely on payslips to assert that a given employee has been granted his entitlements and to justify the actual payment of RTT days, failing which the burden of proof would be wrongly shifted (Cass. Soc. 3 September 2025, No. 23-15.275).