Galion Newsletter – Employment Law, France

The provisions of article L. 1221-25 of the French Labour Code require employers who terminate an employee’s trial period to observe a notice period. Since an order of 26th June 2014, this text specifies that “when the notice period is not observed, its non-observance entitles the employee, unless they have committed a serious fault, to compensation in lieu of notice”. The French Supreme Court considers that employers, when they terminate the trial period before its expiry, can exempt the employee from observing their “notice period“, provided that the latter is paid. Consequently, and contrary to what the court of appeal ruled, such termination could not be considered as dismissal without real and serious cause (Cass. Soc., 16th September 2015, n°14-16.713).

In a first case, an employer had summoned an employee, following her resignation, to an interview prior to mutually agreed termination, which she ultimately didn’t attend. The employee then brought action before labour court to demand the judicial termination of her employment contract. For the French Supreme Court, the proposal of mutually agreed termination following resignation does not call the latter into question. In a second case, the French Supreme Court specified that the existence of a defect of consent is subject to the supreme appraisal of the judges on the merits. In this particular case, the employer has applied pressure to the employee to make him sign a mutually agreed termination, meaning that his consent had been invalidated (Cass. Soc., 16th September 2015, n°14-10.291 and n°14-33.830).

An employee demanded to benefit from a complementary pension scheme applicable to certain subsidiaries of the group even though the company that employed him was not one of those that had signed up to this scheme. The applicant accordingly considered that there had been unequal treatment of employees of the same group. The French Supreme Court here reiterates that “the principle of equal pay is not applicable between employees of different companies, no matter that they belong to the same group” (Cass. Soc., 16th September 2015, n°13-28.415).

In terms of slander, it is well-established in case law that the accused can positively establish their good faith in order to avoid being held criminally liable. In this particular case, an employee had brought action for non-public slander against a union representative who had accused her of psychological harassment during a meeting of employee representatives that she attended as a guest. Though the judges ruling on the merits, followed by the French Supreme Court, considered that the offence of slander was well established, they discharged the accused on grounds of her good faith, considering that “the latter was pursuing a legitimate goal by asking in this way a question about the working conditions of a female employee and their impact on the health of the employee in her capacity as union representative” (Cass. Crim. 8th September 2015, n°14-81.495).

The CJEU here responds to the following preliminary question: does the time spent by workers without fixed or habitual place of work travelling between their home and their customers constitute working time in accordance with article 2.1 of directive 2003/88? In this case, technicians in charge of installing and maintaining security systems travel every day from their home to the places where their clients are located, following a route issued by the employer. This distance could sometimes exceed 100 kilometres. The employer felt that the travel time should be considered as rest time rather than working time and it therefore only counted the time spent working on site and travelling from one client to another. For the CJEU, in such circumstances, “in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their home and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.” (CJEU, 10th September 2015, case C-266/14).

From 1st September 2016, companies will be required to electronically file their professional training contracts with joint registered collection agencies via the work-study portal (D. n°2015-1093 of 28th August 2015, French Official Gazette of 30th August).

The “Macron” act of 6th August 2015 extended the possibilities for retailers to not observe Sunday as a day of rest by, in particular, creating shopping districts, tourist districts and international tourist districts. The implementing decree of 23rd September 2015 sets the criteria enabling the demarcation of these districts. Shopping and tourist districts shall be demarcated by prefectural orders, whereas international tourist districts shall be set by orders of the ministers of labour, tourism and commerce(D. n°2015-1173 of 23rd September 2015, French Official Gazette of 24th September).

Having received a request for an opinion on the setting of the employer’s net profit enabling the calculation of the amount of the special employee profit-sharing reserve, the Supreme Court specified that “for the implementation of the provisions of article L. 3324-1 of the French Labour Code, the tax corresponding to the profit that the company generated during a given financial year, which must be deducted from this profit, can only apply to corporate income tax, at the standard legal rate, resulting from the base and payment rules that ordinarily govern the taxation of profits; that, in the event that a company benefits from tax credits attributable to the amount of this tax, there is no need, subsequently, to take account of the amount of these credits”(Cass. Opinion of 14th September 2015, n°15006).