When the law provides for the communication of certain documents to the staff representatives in order to obtain their opinion on a matter, the consultation period only runs as of this communication. This is the case of the economic and social database, which is the basis for preparing the works council’s consultations. As long as it has not been made available to the works council, the consultation period does not run. The committee is no longer locked in a time window to decide. The Court of Cassation has ruled this in relation to one of the periodic consultations of the works council (the consultation on the strategic orientations), but this solution is applicable to all the consultations of this body.
It is therefore important for French-based companies to update the database regularly and to ensure that staff representatives are informed of this update.
The employer's use of information available on social networks is fueling increasing litigation. Whether it concerns information about the employee or comments the employee posted online, the question arises as to whether the employer who is aware of it, in one way or another, is able to use it in anyway.
It’s important to evaluate how the data is accessed.
Case law takes into account the settings of the social media, whether it was left open or closed, and whether the information was destined for friends, friends of friends, or the general public.
Originally, the Court of Cassation, on April 10, 2013, considered that a closed parameter setting, reserving access to the site only to persons approved by the interested party, excludes the qualification of public insult. In a similar sense, the Rouen Court of Appeal, invalidated the dismissal of two employees who exchanged abusive remarks about their employer with co-workers while it was not established that the setting up of Facebook accounts gave the comments a public character.
On the other hand, when the remarks are accessible on a public or semi-public wall, the judges are quick to consider that the employer can claim their character excessive, disparaging or insulting, to justify a dismissal.
Some jurisdictions also believe that, in general, social media should be considered as a public space.
The Social chamber of the Court of Cassation, that deals on labour and employment matters, has for the moment only delivered one verdict and it’s not very clear cut.
On December 20, 2017, the court held that an employer cannot access, without disproportionately and unfairly affecting an employee's private life, information extracted from her Facebook account obtained from the mobile phone of another employee, when this information was restricted to authorized persons.
The court speaks of disloyalty but this concerns the method in which the evidence was obtained: through maneuvers and someone else’s phone. It seems to distinguish this reprehensible behavior from the actual invasion of privacy that is performed when the content of information is related to the employee’s personal life.
The lesson here is that employees need to be careful of the settings of their social network profiles and pay attention to whom they share their content with!
As you may know, religious signs in the workplace is a hot topic in Europe, and especially in France, a country with its own particular form of secularism called laïcité.
In March 2017 there were two judgments of the CJEU on the wearing of the Islamic veil at work. In the first one, it was said that the customer's wish not to be served by someone wearing the veil could not justify its prohibition.
In the second one, it was said that if the employer has a policy regarding neutrality in the workplace, such a policy may justify the prohibition of the veil, provided that this prohibition is proportionate and legitimate for the workplace’s activity.
The French Supreme court, the Cour de cassation, has taken up these decisions. In a ruling dated 22 November 2017, the Cour de Cassation reiterates several points: Thus, it considers that "company’s internal rules can not contain provisions providing for the rights of individuals and individual and collective freedoms restrictions that would not be justified by the nature of the task to be performed nor proportionate to the desired purpose".
What does this mean for employers?
Employers may restrict the wearing of the veil and of other religious, cultural, or philosophical symbols in the workplace by first implementing a neutrality clause in their company rule book.
Secondly, this restriction can only concern employees who are in contact with clients or the public.
If the employee refuses to work without wearing the religious, cultural, or philosophical symbol, the employer must first try to find another position for the employee within the company without visual contact with customers, rather than terminating the employee.
Source : leglobal.org Van Olmen & Wynant (L&E Global Belgium), together with the Belgian Institute for Company Lawyers (IJE | IBJ), recently hosted a successful bilingual (Dutch and French) Employment Law Forum, attended by some 70 HR managers, in-house counsels, academics and magistrates from across the country. Read more
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There’s a growing debate in France regarding the intra-European secondment of employees who come to France to work. The subject is a delicate one because it is close to the matter of social dumping. Employees arriving from Central and Eastern Europe are seconded to France to work on projects, often construction sites, and are paid salaries that defy the French competition, leading to complaints of unfair and disloyal competition. Moreover, this work is not always properly declared to the authorities and may not be properly regulated.
Certain municipalities have taken their own measures to prevent this, for example by imposing clauses Molière, named after the iconic French playwright (the French Shakespeare). These clauses require that employees must speak French if their employer wishes to respond to a call for tenders. The justification is one of safety and compliance with administrative processes and regulations. However, the validity of such rules is debatable as they might go against European non-discrimination principles.
Secondment rules have been reexamined before the European Commission with various changes being proposed. Employers should keep a close eye on this evolving matter.
Transparency, responsbility, accountability…such are the guiding words of the new « Sapin II Law », fully named the « Law on Transparency, the Fight Against Corruption, and for the Modernisation of Economic Life » which was recently approved by France’s Constitutional Council and which will now enter into effect over the coming months.
What do you need to know?
Sapin II expands extra-territorial reach for French prosecutors. The law applies fully to corruption by French companies overseas and foreign companies who have a presence in France
Creates new obligations for companies to take an active role in preventing corruption. Companies with over 500 employees and/or an annual turnover in excess of EUR 100m must put in place a framework to allow for accountability.
The law puts in place eight mandatory measures for a corruption prevention program with more to come. So far, these include a code of conduct to be integrated into the internal regulations of the company; a whistleblowing line; ongoing risk assessments; due diligence regarding clients, suppliers and intermediaries; internal and external controls; training; a roster of disciplinary sanctions; and an internal audit of the program. Companies will need to consult with their employee representative organizations prior to integrating the code of conduct into internal regulations. Foreign companies with similar systems already in place will have to update and adapt them.
The law creates a new national anti-corruption agency called Agence Française Anticorruption (AFA).
The law requires all companies with more than 50 employees to establish a whistleblower mechanism and provide protection against retaliation guaranteeing confidentiality.
The system is different from its UK and US counterparts. It only applies to disinterested parties. The whistleblower must have firsthand knowledge of the facts they are reporting. With very few exceptions, whistleblowers receive immunity from criminal prosecution.
Whistleblowers must first use the internal whistleblowing channels before blowing the whistle to the public authorities and the press.