Galion Newsletter - Employment Law, France

Published 14 March 2016 by Galion

Log Book No. 86 – February 2016

Employment contract : consequence of a modification imposed by a collective bargaining agreement.

The policy applicable to professional football, which has the legal force of an industry-wide collective bargaining agreement, enables the clubs to reduce the remuneration of their players in case of relegation to an inferior division. The players have eight days to reply in writing to this offer, failing which their silence will be deemed acceptance of such remuneration reduction. In this case, the judges ruling on the merits dismissed the a player’s claim, on the ground that he had challenged the remuneration reduction more than one year afterwards. However, according to the Supreme Court, “unless otherwise provided for by law, a collective bargaining agreement cannot enable an employer to proceed with a modification to the employment contract without the employee’s express consent” (Sup. Court, Labour Section, 10 February 2016, n°14-26.147).

Privacy : treatment of emails from personal mailbox submitted before the court.

In this case, the emails submitted by the employer came from the personal mailbox of the employee, but had been found on her professional computer. The Supreme Court agrees with the Court of appeal for disregarding such emails, to the extent that their submission breached the secrecy of correspondence, since “the disputed emails came from the personal mailbox of the employee which is different from the professional mailbox which she was provided with for the purposes of her activity” (Sup. Court, Labour Section 26 January 2016, n°14-15.360).

Trade unions : details on the trade unions’ standing in court.

Article L. 2132-3 of the Labour Code provides that « professional trade unions are entitled to stand in court. They can, before any jurisdiction, exercise any and all rights granted to the victim concerning facts causing direct or indirect prejudice to the collective interest of the profession that they represent». In this case, a trade union brought a claim against a company before the court considering the failure by the latter to declare a video surveillance device with the Data Protection Authority (CNIL).
The Supreme Court confirmed the decision of the judges ruling on the merits who had declared such action admissible « since […] the consequence of the facts […] was to enable the illicit recording of the employees’ images during their activity, notably during the exercise of their rights as trade unions members, and to enable the treatment and the retention of the images without the consent of the persons concerned » (Sup. Court, Criminal Section, 9 February 2016, n°14-87.753).

Hygiene and Safety Committee : time bar of a claim to challenge an expertise.

Article L. 4614-13 of the French Labour Code enables the employer to bring a claim before the court in order to « challenge the need for an expertise, the appointment of the expert, the cost, the scope or the time period of the expertise ». Article R. 4614-19 of the same code only provides that the Chairman of the Court of First Instance “rules as matter of urgency” on these claims. In five cases reviewed on the same day, employers brought claims before the court several months after the appointment of an expert by the Hygiene and Safety Committee. The Supreme Court indicates for the first time that “failing any specific provisions, the employer’s claim to challenge the expertise decided by the Hygiene and Safety Committee is only subject to the ordinary time bar resulting from Article 2224 of the Civil Code”, that is five years (Sup. Court, Labour Section, 17 February 2016, n°14-15.178, 14-22.097, 14-13.858, 14-18.381 and 14-25.358).

Dismissal : sanction of the dismissal of a sick employee.

Constant case law enables the employer to dismiss a sick employee due to the disruption in the business operation, as long as the permanent replacement of the employee is necessary. The Supreme Court indicates for the first time that, where the employer did not proceed with the permanent replacement of the employee, the dismissal is deprived of any real and serious cause, but is not necessarily null, failing any indication such as to presume the existence of a discrimination (Sup. Court, Labour Section 27 January 2016, n°14-10.084).

Staff representatives : details on the scope of the right of alert.

Pursuant to Article L. 2313-2 of the Labour Code, « in the event that a staff delegate notices, notably through an employee, that there is a breach to the rights of the persons, to their physical and mental health or to individual freedoms in the company which is not justified by the nature of the task to be performed, nor proportionate to the goal sought, he shall immediately alert the employer». In this case, the alert had been given because of a breach to the physical health of a trade union delegate who had been sanctioned. The staff delegate reproached the employer for not taking into account this alert. According to the Supreme Court, « the exercise of the right of alert bestowed upon the staff delegates cannot aim at cancelling a disciplinary sanction against which the employee has a specific remedy » (Sup. Court, Labour Section, 9 February 2016, n°14-18.567).

Disabled Workers : new modalities to fulfil the employment obligation.

A decree indicates how the employers subject to such obligation can partially fulfil the same by entering into provision or outsourcing contracts with disabled independent workers and by hosting disabled persons for periods during which they will discover a professional framework (D. n°2016-60 of 28 January 2016, Official Journal of 30 January).

Social contributions : collection settlement procedure.

From now on, the employers are allowed to enter into a settlement agreement with the authority in charge of collecting the social contributions (URSSAF) for reassessments which are not time barred and which have not given rise to any final court decision. The request for a settlement must be sent in writing to the Chairman of the URSSAF by the employer, its chartered accountant or its lawyer. It is admissible only after reception of the formal notice provided for by Article L. 244-2 of the Social Security Code (D. n°2016-154 of 15 February 2016, Official Journal of 17 February).

Employers’ representatives : validity of the audience criterion to measure representativeness.

The Constitutional Court, ruling on a high-priority question of constitutionality (« QPC »), considers compliant with the French Constitution the provisions of the Labour code pursuant to which the representativeness of the employers’ organizations is notably determined according to their audience, which is measured based upon the number of companies registered as members with this professional organization, without taking into account the number of employees or the turnover of such companies (CC, QPC 2015-519, 3 February 2016).