Decree of the Law on Employment Security

Further to the law on employment security passed on June 14, 2013, a decree detailing the maximum time limits applying to the works council to issue its opinion and to its expert to render its report on various consultations cases, as long as an agreement is not reached between the works council and the employer providing for shorter or longer consultation process’ duration was adopted on December 27, 2013. These time limits do not apply on collective redundancies projects since they were already provided by the law dated June 14, 2013.  

Case law

Cass.soc., May 23, 2013, n°12-13.015- Burden of proof and compliance with daily rest provisions

According to the European directive n°2003/88/CE of November 4, 2003, which has been implemented in French law, all French employees are entitled to a daily rest of at least 11 consecutive hours. In case of breach of these provisions, employees can file a claim against their employer to obtain damages.

In May 2013 the Supreme Court decided that for such claims, even though the burden of proof when dealing with overtime lies with both the employee and the employer, the burden of proof of respect of provisions on daily rest lies only with the employer. This is due to the fact that the daily rest is provided by European Union legislation which aims to ensure the health and security of employees. Furthermore, the French Supreme Court also judged that breach of the daily rest necessarily causes a prejudice to the employee, which thus has to be compensated. In a previous case, the Supreme Court ruled in a similar way about a breach of the rules on weekly rest (Cass.soc., October 31, 2012, n°11-20.136).

Cass. soc., June 5, 2013, n°11-21.255- Adaptation training obligation and impact on redundancy

The employer has the obligation to provide his employees with training to ensure that they remain suitable to perform their job positions and adapt to changes in the business. In case of breach of this obligation, employees may be awarded damages. In addition, redundancies can be notified only when the employer made all required training efforts. In June 2013 the Supreme Court faced a case where the employee was hired without any specific skills or experience. He only trained at his arrival to carry out his duties as process operator. During his 16 years employment, the employee did not benefit from any training to ensure his adaptation at work. The French Supreme Court ruled that by offering no training to his employee during such a large period of time, the employer breached its obligation vis-à-vis its employee, no matter that the employee’s duties were not subject to any particular development and that the employee did not seek the benefit of any training. The employees could thus claim damages. In this case, the employee did not invoke this breach to challenge the validity of his redundancy, but he could have done so and obtained damages for unfair termination on top of separate damages for breach of the training obligation.

CE, July 3, 2013, n°349496- Violent behavior relating to mental disorder and limitation of the employer’s disciplinary authority

An employee displayed violent and aggressive behavior towards his supervisor. Being an employee representative, the employer requested the authorization from the labor inspector to dismiss him for fault. Once the labor inspector delivered his authorization to dismiss the employee, this latter appealed the decision before the administrative court for the authorization to be considered null and void. The administrative court ordered a medical expert to provide a report which revealed that the employee’s violent behavior was due to a mental disorder. The French Administrative Supreme Court decided that there was a link between the employee’s dismissal and his health condition and that therefore, his dismissal was null and void. This decision is particularly harsh for the employer: its only valid option would have been to obtain a certificate from the labor doctor attesting that the employee was unfit to work. Such solution would have, at least, required that the employer be aware of its employee’s health condition at the date of the dismissal.

Cass. soc., September 25, 2013, n°12-21.747- Suspension of reorganization project and incomplete information received by the health and safety committee

The French Labor Code provides that before making any important management decision, the employer must consult the health and safety committee which will consider the impact of the considered measure on the employees’ working conditions and health and safety. In this case, a hospital decided to reorganize one of its units and thus submitted this project to the prior consultation of the health and safety committee. In this framework, the hospital provided the committee with an 8-page power-point which only briefly outlined the content of the project. This document did not contain any of its foreseeable consequences on employees’ working conditions. The committee considered that it was not in a position to issue its opinion since it was not sufficiently informed on the project. The committee thus filed summary proceedings for the project to be suspended. The French Supreme Court considered that the committee indeed received incomplete information relating to the consequences of the reorganization on working conditions and thus decided to suspend the implementation of the reorganization project until the committee received full and complete information on the project.

Cass. soc., October 23, 2013, n°12-23.457- Equality of treatment of employees included in a statutory job protection plan

The principle of equal treatment between employees must be complied with at every step of the working relationship, including when a social plan is adopted. Pursuant to this principle, advantages may be granted to a limited number of employees only if they are granted to all employees being in a similar situation and if the terms and conditions of allocation of such advantages are objectively defined. 

In this case, the closure of one establishment was contemplated and in this framework, the social plan provided that the impacted employees working within the establishment subject to the closure will receive an additional indemnity amounting to 10,000 Euros while other impacted employees will be excluded from this payment. For the French Supreme Court, belonging to an establishment about to be closed down does not constitute a justification which may validly justify excluding other employees from the benefit of an additional indemnity provided by the social plan.

Cass. soc., November 20, 2013, n°12-20.074- Non-compete clause and resignation

After having resigned, a commercial engineer, having a non-compete clause in his contract, was exempted from work by his employer during his notice period from October 23, 2009. On November 2, 2009, this employee joined a competitor. The previous employer thus filed a claim to obtain damages for breach of the non-compete clause, even though he did not pay the financial compensation to which the employee was entitled. The French Supreme Court ruled in favor of the employer. The court first considered that the new duties carried out by the employee were the same as the ones carried out for his previous employer. Then, the court judged that in consideration of the brief period of time existing between his two job positions, the employee cannot invoke that the non-payment of the non-compete indemnity could be considered as a renunciation to the non-compete on the part of his previous employer.