Galion Newsletter, Case Law – France
CASE LAW
Working hours: transfer of the employment contract and the fixed number of days to be worked each year [forfait-jours].
An employee, dismissed several years after having been transferred to a subsidiary of the company that had hired him, demanded inter alia back pay for overtime hours, even though he was subject to a fixed number of days to be worked each year [forfait-jours]. The court of appeal dismissed his claim, considering that his employment contract had not been amended at the time of his transfer, with the result that he continued to be subject to the fixed number of days to be worked each year. The Court of Cassation annulled this decision, because the trial judges had not observed that the employee was subject, in the company to which he had been transferred, to a collective agreement providing for the entering into of agreements stipulating a fixed number of days to be worked each year (Cass. Soc., 15 May 2014, No. 12-14.993).
Illness: assessment of the concept of company disorganisation to dismiss an absent employee.
Traditionally, French case law has allowed that an employee on sick leave can be dismissed, not as a result of said employee’s state of health, but due to the objective situation of the company, the functioning of which is disturbed by the extended absence or the repeated absences of the employee. The latter can only be dismissed if these disturbances result in the need for the employer to permanently replace said employee. In this case, after having implemented a temporary solution to offset the employee’s absence, in the end, the employer dismissed the employee. The Court of Cassation ruled that this measure was not valid because the employer could have continued to apply the temporary solution that it had found (Cass. Soc. 30 April 2014, No.13-11.533).
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