NewsletterNewsletter No.213 – September 2026
PERFORMANCE OF EMPLOYMENT CONTRACT: An employee’s freedom of expression requires the court to assess the proportionality of their dismissal.
A disabled employee, assigned to a banking institution for several years, was dismissed for gross misconduct after sending letters containing improper language to his employer company, in which he notably requested integration into the permanent workforce and challenged the tracking of his working hours. The Court of Appeal had dismissed his claim for nullity of the dismissal, holding that his remarks exceeded the boundaries of his freedom of expression. The French Supreme Court (Cour de cassation) overturned this decision, holding that a dismissal based on the exercise of this freedom is null and void, as the court must balance the employee’s rights against the employer’s right to protect its interests. The court must thus assess the content, context, and scope of the statements, as well as the harm caused, in order to determine whether the sanction was “necessary and proportionate to the legitimate aim pursued“. The Cour de cassation thus abandons the criterion of “injurious, defamatory, or excessive” statements, as their content cannot be assessed independently of the context in which they were made (Cass. Soc. 9 September 2026, No. 25-12.320).
PAID LEAVE: Claims for payment of compensation in lieu of paid annual leave accrued during sick leave are subject to a three-year limitation period starting from the termination of the employment contract.
Employees whose employment contracts had been terminated before 24 April 2024, claimed payment of compensation in lieu of paid annual leave for periods of non-occupational illness. The lower courts had adopted divergent approaches regarding the starting point and scope of the limitation period. In three rulings dated 16 September 2026, the Cour de cassation ruled that the action “is subject to a three-year limitation period starting from the termination of the employment contract”, without the receipt of the account settlement or the information provided by the employer altering this starting point. The two-year time limit introduced by the Act of 22 April 2024 does not, moreover, apply to employment contracts already terminated. However, the three-year limitation period relates only to the bringing of the claim: it does not limit the period in respect of which paid annual leave may be compensated, which may extend back to 1 December 2009, subject to the rules governing carry-over and loss of entitlement (Cass. Soc. 16 September 2026, No. 25-15.456, No. 25-12.609, and No. 25-14.826).
HEALTH AND SAFETY: An employer’s failure to comply with the occupational physician’s recommendations regarding adjustments to an employee’s workstation, in itself gives the employee a right to compensation.
A female employee working in a gas station, whom the occupational health physician had prohibited from any outdoor work and from carrying loads, complained that her employer had nevertheless assigned her to such duties and sought damages on that basis for breach of its duty to ensure her health and safety. The lower courts dismissed her claim on the grounds that she failed to prove distinct damage resulting from this breach. Wrongly so, according to the Cour de cassation, which reversed its established case law, now holding that “the mere finding of the employer’s failure to comply with the occupational physician’s recommendations […] gives rise to compensation“, without the employee having to prove personal harm (Cass. Soc. 9 September 2026, No. 25-11.901).
SICK LEAVE: A decree reduces to one year the period for which sickness benefits are payable in respect of sick leave taken for certain long-term conditions.
Decree No. 2026-866 of 16 September 2026 tightens the rules governing sick leave. It reduces from three years to one year the period for which sickness benefits are payable in respect of certain long-term conditions. This measure will apply to periods of sick leave prescribed as from 15 October 2026, as well as to periods of sick leave already in progress on that date where the incapacity for work reaches six months as from that date. In addition, an unjustified prescription for sick leave may now result in a penalty being imposed on the insured person, as part of measures to combat so-called “doctor shopping“. In parallel, the Minister of Health has announced the roll-out of rehabilitation programs aimed at reducing the duration of sick leave and helping employees remain in or return to employment, with nationwide implementation planned from 2027 for mental health disorders and a gradual roll-out from January 2027 for chronic pain (Decree No. 2026-866 of 16 September 2026, Official Journal).
UNFAIR COMPETITION: The mere possession of confidential information belonging to a former employer is sufficient to establish its appropriation by the new employer.
A technical sales representative had resigned to join a competitor. A bailiff’s formal report subsequently revealed that his business computer contained customer contact details and pricing proposal templates belonging to his former employer, which brought a claim for unfair competition. The Court of Appeal dismissed the claim, holding that, although the employee’s possession of this information had been established, its appropriation by the new employer had not. The Cour de cassation quashed this decision and held, on the basis of Article 1240 of the French Civil Code, that “the mere possession” of confidential information belonging to the former employer on the employee’s business computer “constitutes appropriation” by the new employer. The latter cannot therefore rely on its own ignorance of the information, nor is the former employer required to prove that the information was used. This solution applies even in the absence of a non-compete clause (Cass. Com. 2 September 2026, No. 25-12.718).
PAY TRANSPARENCY: The bill transposing the European Directive on pay transparency has been presented to the Council of Ministers.
Presented to the Council of Ministers on 10 September 2026, the bill transposes EU Directive 2023/970 and strengthens companies’ obligations regarding equal pay. Indeed, companies with 50 or more employees will be required to report new indicators measuring the pay gap between women and men, including a specific indicator for employees performing work of equal value. Where the pay gaps identified exceed 5% and cannot be justified by objective, gender-neutral criteria, the employer will be required to implement corrective measures, either through a collective bargaining agreement or, failing that, through an action plan. The framework also provides for increased pay transparency and a strengthened burden of proof in cases of gender-based discrimination (Bill transposing Directive (EU) 2023/970 of 10 May 2023).