Extension of Paternity Leave for Fathers

New Legislation Enacted

At the birth of a child, French fathers can benefit from a birth leave paid by the employer as well as a paternity leave paid by the social security system. Until now, these leaves were not always taken by employees. On December 14, 2020, the government enacted a law to compel employees to enjoy these leaves and extend their duration from 11 to 25 days. Accordingly, it is mandatory for fathers to take three days of birth leave as of the next working day from the child’s birth. A period of paternity leave of four days in a row must be taken, just after this first leave. During this period of seven days, it is forbidden for employers to make employees work, so that taking the leave is now compulsory. Employees can benefit from a second paternity leave for a duration of 21 days, extended to 28 days in case of multiple births. Employees will be able to split this leave in several parts.

A New Definition of the Co-employment Concept

Precedential Decision by Judiciary or Regulatory Agency

The concept of co-employment involves searching for the actual decision maker in a group of companies, to hold the decision maker responsible for the consequences flowing from such decisions. When a court finds that co-employment exists in a case, then the parent company is considered as a co-employer who is responsible for the obligations resulting from the decisions made towards employees of the subsidiary.

In a decision dated November 25, 2020, the French High Court confirmed the conditions of a co-employment situation, defining it as the permanent interference of the parent company within the company’s social and economic management, as well as the subsidiary’s total loss of autonomy. This loss of autonomy is a key element, which is evident when the subsidiary lacks the power to make economic and social decisions. With these new criteria, the High Court provides a very precise frame to the co-employment concept.

Transfer of Criminal Liability from Acquired Company to Acquiring Entity

Precedential Decision by Judiciary or Regulatory Agency

Until now, the French High Court considered the dissolution of a legal entity exactly like the death of a physical person. The disappearance of an acquired company after an acquisition would lead to the lapse of all and any criminal lawsuit against this entity. The criminal rule providing that a person can only be liable for his/her own actions was an obstacle for sentencing the acquiring company.

In a decision dated November 25, 2020, the High Court of Justice disputed this approach, so that there is now a specific rule for companies whose business is still running within the acquiring entity, after acquisition. Such principle authorizes, under some conditions, the transfer of the criminal liability from the acquired company to the acquiring company. However, this transfer of criminal liability applies only to mergers and acquisitions falling within the scope of the EU Directive related to the merger of limited companies and to operations finalized after the date of the ruling. However, when the acquisition was made to avoid criminal liability, then such operation is considered a fraud and subject to the regular rules of transfer of liability, regardless whether the transaction was a merger or an acquisition.

Admissibility of Illegal Evidence to Justify a Disciplinary Sanction

Precedential Decision by Judiciary or Regulatory Agency

In this matter, an employee was dismissed for having sent an email to a customer using the identity of other customers. The employer discovered this fact by searching within its IT system and tracking the sender’s IP address. The employee challenged this dismissal, and objected to the use of the evidence, claiming that the employer obtained it unlawfully. The employee argued that the use of log files and IP addresses should have been declared before the French Data Protection Authority (CNIL).

The French High Court ruled in his favor, finding that IP addresses must be considered private data that cannot be processed nor used without a prior declaration to the local CNIL. However, the French High Court held that the evidence does not need to be rejected, even though it was obtained illegally. In litigation, judges must assess whether the invasion to employee’s privacy by using such evidence can be justified in light of the employer’s right to present evidence in its defense.