(convention de forfait en jours) (Cass. Soc. 26 September 2012, no. 11-14.540)

After an important decision ruled in 2011 [link to article on the ruling dated 29 June 2011], the French Supreme Court (Cour de cassation) has again reviewed the validity of the “annual working days agreement” to comply with the protection of the health and safety of the workers. It has been ruled that such “annual working days agreements” have no effect if the collective bargaining agreements authorizing them cannot effectively guarantee that the work day span and the workload remain reasonable.

In this case, the branch collective bargaining agreement (wholesale industry) and the company collective bargaining agreement only provided for meetings (respectively annual and quarterly) in order to focus on the employee’s work day span and workload.

The Court decided that these provision were not sufficient to guarantee that the work day span and the workload remained reasonable and to ensure a proper distribution of the employee’s work. For these reasons, we strongly recommend the companies to set up a real monitoring system to control precisely and efficiently the working time, even though the “annual working days agreement” should have permitted the employers to avoid it. Outside office’s mandates do not provide any protection to an employee unless known by the employer (Cass. Soc. 14 September 2012, no. 11-21.307)

According to a decision of the French Constitutional Council (Conseil constitutionnel) dated 14 May 2012 and reversing its position, the French Supreme Court has just ruled that an employee can only claim entitlement for the protection afforded by an outside office’s mandate (for example, a Labour Court elected member), if he/she is able to prove that he/she has informed his/her employer at the latest, during the pre-dismissal meeting. The loyalty’s duty towards the employer now prevails over the employee’s legitimate right of discretion, as well as another practice for some protected employees to intentionally conceal their mandate to invalidate their dismissal.