On April 3, 2019 the French Supreme court (Cour de cassation) put a halt on its case law regarding the presumption of justification that applies to differences in treatment that were outlined by a collective agreement.
The ruling is explicit: there will be no general presumption that the differences are justified.
However, the presumptions do not necessarily disappear for the uses and applications that were already in place. Indeed, the presumption remains in place when European Union law is not involved. Let’s take a closer look. According to the principle that was set out in 2015, differences in treatment that were outlined in a collective agreement, such as differences between categories of workers, benefited from a solid presumption of justification. This meant that to challenge it, an employee had to prove that the difference in treatment that victimized him was actually completely foreign to any professional considerations.
Since 2015, this presumption was extended to other situations, such as differences between employees working in different sites. This progressive extension has been halted by the ruling of April 3, 2019.
The court’s reasoning is based on European Union law, in particular its provisions regarding procedural rules of evidence of discrimination: these were found to be incompatible with the presumptions resulting from the collective agreements.
Consequently, the presumptions still operate when European Union law does not apply to the question at hand. However, what this covers precisely is a little less clear.
This ruling and its accompanying note, published by the court, raise some uncertainties and ambiguities that will have to be clarified in the near future.
However, this ruling is clearly very important: it means that even when agreed in the context of a company collective bargaining agreement, any difference of treatment shall be carefully considered and motivated.