The Participation of Employee Representatives and Unions in the Ecological Transition

New Legislation Enacted

A new law focusing on combating climate change and strengthening resilience to its effects has been adopted. The law integrates “ecological transition” as a topic in the consultative attributions of the social and economic committee (formerly works council) of companies with at least 50 employees. With regard to specific consultations, the social and economic committee is now informed and consulted on the environmental consequences of measures from the employer affecting the organization, management and general operation of the company.

In the same way, during the recurrent consultations on the strategic orientations of the company, on the economic and financial policy and on the social, employment and working conditions policy, the social and economic committee must be informed of the environmental consequences of the activity of the company. The mission of the Chartered Accountant is extended to the environmental consequences of the company's activity within the framework of these consultations. For unions, periodic negotiations on the forward-looking management of jobs and skills will have to take into account the challenges of the ecological transition.

A New Definition of Sexual Harassment under French Law

New Order or Decree

The definition of sexual harassment has been amended in the Labor Code. The Labor Code’s prohibition against sexual harassment now includes comments or behavior with a sexist connotation. Additionally, sexual harassment in the workplace now includes when an employee is subjected to such remarks or behaviors by several persons, in a concerted manner or after being instigated by one of them, even though not each of these persons has acted in a repeated manner. Alternatively, it is present when an employee is subject to such remarks or behaviors successively by several persons who, even in the absence of a concerted action, know that these remarks or behaviors characterize a repetition.

A bill currently being debated in Parliament seeks to improve the whistleblower protection for persons who have suffered or refused to suffer repeated acts of sexual harassment, or who have testified or reported such facts.

Approval of the Inflation Allowance

New Order or Decree

Because of the significant rise of fuel and energy costs, the government introduced an “inflation allowance,” which is an exceptional financial aid of 100 euros for people living in France whose income does not exceed 2,000 euros net per month. The allowance is paid only once, as of December, and at the latest on February 28, 2022, and is exempted from social security charges and income tax.

For employees, the payment is made by the employer if the beneficiary meets the conditions set by the decree. The employee must be at least 16 years old as of October 31, 2021, and a legal resident of France. In order to check the condition relating to the level of remuneration, the employer must compare the gross remuneration due to the employee for the periods running from January 1 to October 31, 2021, with a ceiling of €26,000 as a gross amount.

Sanctioning Disloyalty during Consultation on Strategic Directions

Precedential Decision by Judiciary or Regulatory Agency

In the case brought before the judicial Court of Paris, a social and economic committee admonished the employer for having proceeded to the compulsory annual consultation on strategic orientations while preparing a restructuring project without informing the social and economic committee about it. In France, employers with at least 50 employees must consult with the social and economic committee annually on the company’s strategic orientations. The employer is also obliged to consult with the committee separately on specific restructuring projects.

The court held that the information and orientations given by the employer in the framework of the consultation procedure must be sincere and correspond exactly to the reality of the perspectives envisaged at the time of their communication with the trade unions. The court found that the employer concealed the restructuring project, which amounted to disloyalty towards the information/consultation procedure. The employer was therefore sentenced to pay each of the parties damages as compensation for the prejudice suffered.

Issue on Evidence and Purpose of a Video Surveillance System

Precedential Decision by Judiciary or Regulatory Agency

An employee was dismissed for serious misconduct, after the employer obtained evidence of the misconduct through a video surveillance system installed in the employee’s workplace. The video surveillance system had been installed for the protection and security of goods and persons on the company's premises. However, this system also enabled the employer to control and monitor employees’ activities, even though such purpose had not been the subject of prior information and consultation with employee representatives.

The French Supreme Court ruled that the recordings could not be used as evidence in the case. However, the Court clarified that such evidence may be admissible in certain circumstances.