Galion Newsletter – Employmet Law, France
CASE LAW
Employee representatives: impact of illness on the exercise of the mandate.
Even though the payment of social security benefits is subject to the stoppage of all paid work during sick leave, case law has traditionally considered that illness does not suspend the employee representative’s
mandate. Based on this premise, the Court of Cassation, having underlined that “hours spent representing employees are considered as working time”, recently ruled that “the carrying out of their representative work by an employee or union representative, whose mandate has not been suspended, may only entitle them to benefits if authorised in advance by the regular doctor” (Court of Cassation, March 21, 2014, n°12-20.002 and 12-20.003).
Protected-status employee: indemnification in case of termination of the employment contract due to the employer’s behaviour
The violation of the protected status of an employee representative entitles them to specific compensation. In this particular case, the dismissal of a substitute employee representative had been authorised by the labour inspector, but the employee had eventually terminated the employment contract (due to the employer’s behaviour)before he was served notice of dismissal.The Court of Appeal had ruled that the termination of the employment contract was attributable to the employer and stated that the nullity of the dismissal “entitled him to legal or contractual compensation for termination and compensation for losses incurred, without adding compensation linked to his mandate”. The Court of Cassation adopted a different solution, as it considered that the termination by the employee “entitled him, on the basis of the violation of the protected status from which
the employee benefited, to lump-sum compensation equal to the salaries that the employee should have been paid until the end of the current protection period” (Court of Cassation, Soc., March 12, 2014, n°12-20.108).
Redundancy: scope of exercise of the preferential right to re-hiring
Article L.1233-45 paragraph 1 of the French Labour Code states that “an employee who is made redundant has a preferential right to re-hiring lasting a period of one year from the date of termination of their contract if they have so requested in the course of this same period”. In this particular case, an employee alleged that his former employer had not followed up the proposal he had made regarding positions available at one of the group’s subsidiaries. The Court of Appeal had sentenced the company on grounds of non-observance of the preferential right to re-hiring, considering that “as it was part of a group, the preferential right to re-hiring was extended to all positions available within the latter”.The Court of Cassation quashed this order specifying that “the preferential right to rehiring may only be exercised in regard to the company that dismissed the employee” (Court of Cassation, Soc., March 5, 2014, n°12-28.754).re-hiring lasting a period of one year from the date of termination of their contract if they have so requested in the course of this same period”. In this particular case, an employee alleged that his former employer had not followed up the proposal he had made regarding positions available at one of the group’s subsidiaries. The Court of Appeal had sentenced the company on grounds of non-observance of the preferential right to re-hiring, considering that “as it was part of a group, the preferential right to re-hiring was extended to all positions available within the latter”.
The Court of Cassation quashed this order specifying that “the preferential right to rehiring may only be exercised in regard to the company that dismissed the employee” (Court of Cassation, Soc., March 5, 2014, n°12-28.754).
Unfair competition: the preparation of a future competing activity in the course of the employment contract is possible.
The employment law division of the Court of Cassation has ruled on a well-established basis that an employee, in the absence of a non-compete clause, does not commit a fault when they create, during their notice period, a company competing with the company employing them, provided that the activity of this company starts after the expiry ofthe notice period. The business law division has adopted a similar solution and ruled that “the creation, by a former employee, of a company competing with the one by which they were previously employed does not constitute illegal or unfair competition, provided that this creation was not prohibited by a contractual clause and that it did not involve illegal practices”. It added that “the employee may prepare their future competing activity on condition that this competition is only effective after the expiry of the employment contract” (Court of Cassation, Com., March 11, 2014, n°13-11.114).
Incapacity: further details on redeployment positions
In case of incapacity pronounced by the occupational physician, the provisions of article L. 1226-2 of the French Labour Code require the employer to propose to the employee in question “another job suited totheir abilities”. In this particular case, an employee, dismissed on grounds of incapacity, alleged that his employer did not propose to him the position of an employee on maternity leave. The judges on the merits dismissed his claims, considering that “the absence of an employee on maternity leave did not provide an available position but simply a substitute position”. The Court of Cassation did not approve this ruling and considered on the contrary that “the temporary nature of a position [does not prohibit] proposing it as a redeploymentposition” (Court of Cassation, Soc., March 5, 2014, n°12-24.456).
Mutually agreed termination:negotiating a settlement is possible.
The Court of Cassation accepted, for the first time, the possibility of reaching a settlement following the mutually agreed termination of an employment contract, subject to it being reached after the approval of the termination by the administrative authorities and that it
settles:
– a dispute relating to the performance of the
employment contract instead of its
termination;
– issues not taken into account in the
termination agreement.
(Court of Cassation, Soc., March 26, 2014, n°12-21.136).
TEXTS
Training and employee representation: coming into force of the law on vocational training, employment and social democracy
In terms of training, this law notably specified the conditions for the implementation of the individual training account and created the possibility of signing apprenticeship contracts on an openended basis. In terms of social democracy, the rules for the organisation of employee representative elections have been modified with immediate effect, employer representation rules have been reformed and financial transparency rules have been introduced for works councils and both union and employer organisations (Law n°2014-288 of March 5, 2014,).
Health and environment: creation of a new alert right.
From April 1, employers must provide members of the Health, Safety & Working Conditions Committee with a special register in which public health and environmental alerts are recorded (Decree n°2014-324 of March 11, 2014).