Log Book No. 127 – July 2019

An employee complained about acts constituting psychological harassment during his end-of-career leave with cessation of work.  The trial judges rejected his claims for compensation in this respect because he could not put forward any deterioration of his working conditions, since he no longer occupied his position within the company.  Yet, for the French Supreme Court (Cour de cassation), the provisions of article L. 1152-1 of the Labor code, relating to the prohibition of psychological harassment, “are applicable to an employee exempt from activity due to a period of end-of-career leave, if the employment contract is not terminated during this period” (Cass. Soc. 26 June 2019, No. 17-28.328).

An employee whose non-compete clause which was limited to Europe had been extended to the Asia-Pacific area, contested, after having resigned, the compensation calculation method of said clause.   The trial judges stated that the latter was null, due to the extent of its scope of application.  The High Jurisdiction quashed the decision of the Court of appeal reproaching it for having based itself “on the sole geographic extent of the clause, without seeking whether the employee was unable to carry out an activity consistent with her education, her knowledge and her professional experience” (Cass. Soc. 3 July 2019, No. 18-16.134).

In two decisions delivered the same day, the Cour de cassation states as a reminder that “only the giving to an employee of the agreement signed by both parties entitles him or her to request the approval of the agreement and to knowingly exercise his or her right of retraction”.  It is thus a matter for the trial judges to check whether a copy of the Cerfa form was given to the employee and whether said copy is signed by the employer (Cass. Soc. 3 July 2019, Nos. 17-14.232 and 18-14.414).

An automobile component manufacturing company requested the annulment of a decision of the labor inspector ordering the withdrawal of an “alcohol zero tolerance” clause from its internal rules.  The French Administrative Supreme Court (Conseil d’Etat) agrees with it: the administrative court of appeal made a mistake of law “by considering that, to establish the proportionate nature of the prohibition imposed on the employees […], the company could not put forward the single document on risk assessment at work, if the internal rules did not refer to it”.  The Conseil d’Etat also states as a reminder that if “an employer has to be able to establish that this measure is justified by the nature of the tasks to be accomplished and proportionate to the sought goal, it does not result therefrom […] that the internal rules have to, themselves, include said justification” (CE 8 July 2019, No. 420434).

A part-time employment contract cannot provide that the employee shall determine himself or herself his or her working hours.  The indication of a guaranteed minimum monthly duration is not enough.  Such a contract may thus be converted into a full-time contract (Cass. Soc. 3 July 2019, No. 17-15.884).

A protected employee was dismissed for serious misconduct after getting into another employee’s professional inbox, without his consent, and steering a correspondence with an explicit personal nature.   For the Conseil d’Etat, these acts amount to disregarding the obligation of loyalty resulting from the employment contract and justify a dismissal, although they were committed outside the workplace and working hours(CE 10 July 2019, No. 408644).

The Cour de cassation states as a reminder that the only absence of a prior warning or formal notice sent to an employee cannot permit to judge that a dismissal is without real and serious cause.  It is a matter for the trial judges to assess the seriousness of the misconduct which led to the dismissal (Cass. Soc. 10 July 2019, No. 18-13.893).

In case of an early termination of a CDD by an employer, a trial judge is not required to undertake a flat-rate assessment of the loss suffered by the employee.  Exercising their absolute discretion, they are able to fix the amount of such loss (Cass. Soc. 3 July 2019, No. 18-12.306).

According to the High Jurisdiction, “the provisions of article L. 1235-3 of the labor code in their drafting resulting from the law No. 2018-217 of 29 March 2018, which fix a schedule applicable to the determination by the judge of the compensation amount in case of a dismissal without real and serious cause, are compatible with the provisions of article 10 of the Convention No. 158 of the International Labor Organization”.  A few days after these two opinions, the judge deciding in case no majority is reached (juge départiteur) of the Labor court of Grenoble nonetheless decided to dismiss this schedule (Cass. Plén. 17 July 2019 Opinion No. 19-70.010 and 19-70.011; CPH Grenoble, 22 July 2019, No. 18/00267)…

Two decrees provide details on the conditions under which the unemployment insurance takes care of resigning employees and independent workers, along with the application of a rate of gradual decrease of the allowance offered to people wishing to return to work (D. Nos. 2019-796 and 2019-797 of 27 July 2019, Official Journal of 28 July).

This text notably provides for the dematerialization of sick leaves and the integration of the file held by the occupational doctor with the shared medical file (DMP) (L. No. 2019-774 of 24 July 2019, Official Journal of 26 July).