Differences in treatment of professional categories arising from collective agreements or conventions negotiated and signed by representative trade union organisations are presumed to be justified, such that the disputing party is required to demonstrate that they are not professional in nature.

The Cour de cassation has softened its stance on the burden of proof regarding differences in treatment and created a presumption that differences in sectoral advantages arising from collective negotiation are justified (Fédération nationale des personnels des sociétés d’études, du conseil et de prévention CGT v. Fédérations des syndicats des sociétés d’études et de conseils et autres, n° 13-22.179).

Since two rulings handed down in 2011, the Court no longer required that differences in treatment arising from collective agreements are based on objective and relevant reasons: the differences in sectoral treatment were justified if their purpose was to take into account the specific situation of employees in a particular sector (conditions of exercise of duties, career development and terms of payment – Cass. soc. 8 June 2011 n°10-14.725).

The employer remained, however, bound to provide such justification.

The decision of 27 January 2015 means this is no longer the case. The Court now poses a presumption of lawfulness regarding these differences in advantages and has inversed the burden of proof.

The release from the Cour de cassation explains that the old rule “was intended to apply to any noted inequality, whether originating from a unilateral decision taken by the employer, or a collective agreement or convention. However in the field of negotiated rights, experience has shown that the requirement of justification encountered difficulties, particularly in being mostly a burden on an individual employer, although the question concerned a nationally agreed agreement or convention.”

NB: this reversal in case-law remains limited to advantages originating in collective agreements and conventions: advantages originating from atypical agreements or unilateral undertakings are not concerned and the employer is required always to demonstrate the existence of objective and relevant reasons legitimizing the difference in advantages as is reiterated in another decision handed down on the same day (appeal n°: 13-17622, 13-17623 13-17627 13-17628 13-17629).