Log Book No.130 – October 2019

Published 06 November 2019 by Galion

Non-compete clause : consideration for the non-compete obligation and retirement pension.

According to the provisions of article R. 351-10 of the Social security code, a paid retirement pension cannot be revised in order to take into account payments relating to a period after the date on which the insured’s account was settled for the opening of his rights to old-age insurance.  The French Supreme Court (Cour de cassation) concludes that contributions paid as consideration for a non-compete clause, after payment of the pension, cannot be integrated into the calculation of pension rights (Cass. 2nd civ., 10 October 2019, No. 18-20.849).

Health : no automatic prejudice in the absence of the single document.

Since April 2016, the Cour de cassation has abandoned the notion of necessary prejudice which applied to several breaches committed by an employer.  In line with this case law, the Cour de cassation specifies that failure to establish the single document on risk assessment does not necessarily cause a prejudice to the employees (Cass. Soc. 23 September 2019, No. 17-22.224).

Collective bargaining : clarifications on the conditions for the referendum on the validation of a minority agreement.

According to the provisions of article L. 2232-12 of the Labor code, if a company-level or establishment-level agreement does not meet the majority condition of more than 50% but if the signatories have nevertheless received more than 30% of the votes, said agreement may be approved by a consultation of the employees.  Article D.  2232-6 of the Labor code adds that « the union organization(s) requesting the organization of the consultation notify their request in writing to the employer and to the other representative union organizations within one month of the date of signature of the agreement”.  The Cour de cassation added that the absence of such notification by the union requesting the organization of the referendum was not a cause for annulment of the referendum.  It also specified that all of the employees being eligible electors in the company had to be consulted, not only those concerned by the provisions of the agreement (Cass. Soc. 9 October, No. 19-10.816).

Sexual harassment : taking into account the attitude of the employee complaining about being harassed.

In a decision of 25 September 2019, the Cour de cassation decided: “on the one part that the [female] employee complaining about sexual harassment had replied to the [male] employee’s text messages, without it being possible to know which one had taken the initiative to send the first message and without it being demonstrated that the [male] employee had been requested to stop sending messages, and that she had, on the other hand, adopted towards the [male] employee, in the workplace, a very familiar seductive attitude, the court of appeal, which highlighted the absence of any serious pressure or of any intimidating, hostile or offending situation towards the [female] employee, rightly concluded that the ambiguous behavior of the latter, who had willingly participated in a reciprocal seduction game, prevented the facts which the [male] employee was reproached for from amounting to sexual harassment”.  The Cour de cassation however admitted that the disciplinary dismissal of the [male] employee “who had been sending, using his professional phone, repeatedly and for two years, to a [female] employee he had met in his workplace and for whom he was a superior, text messages of an inappropriate and pornographic nature” was justified (Cass. Soc. 25 September 2019, No. 17-31.171).

Personnel representatives : date of assessment of the protective status.

In 2016, the French Administrative Supreme Court (Conseil d’Etat) made a case law turnaround and now decides that the benefit of the protective status must be assessed on the date of the notification to attend the pre-dismissal meeting not on that of the administration’s decision (CE, 23 November 2016, No. 392059).  In a decision of 23 October 2019, the Cour de cassation, which had not yet given an opinion on this point, aligns itself with this solution (Cass. Soc., 23 October 2019, No. 18-16.057).

Social security : a decree on the right to make mistakes and on the URSSAF inspection procedure.

The law dated 10 August 2018 for a State at the service of a reliable society set up a right to adjustment in case of a mistake. The decree of 11 October 2019 extends this right to make mistakes which comes in two forms: the right to make mistakes in social declarations (in favor of the employer) and the right to make mistakes in the payment of social contributions and taxes (in favor of all the contributors).  It results in an automatic exemption from increases and penalties, under certain conditions.  These provisions shall become effective on 1 January 2020.  The decree of 11 October 2019 also modifies several elements relating to the Urssaf inspection procedure.  It notably provides for the possibility for the contributor to request an additional 30-day period to answer the letter of observations received following an inspection by the Urssaf.  These provisions shall also become effective on 1 January 2020 (Decree No. 2019-1050 of 11 October 2019, Official Journal of 13 October). 

Physical appearance at work : framework decision of the Defender of rights.

This decision is part of an action to sensitize employers to discrimination based on physical appearance.  As part of this decision, the Defender of rights recommends that employers define in a written document all the potential constraints and restrictions regarding physical appearance, while complying with the principle of proportionality.  The Defender of rights also recommends training personnel with respect to employees’ rights and freedoms relating to physical appearance (Framework decision of the Defender of rights No. 2019-205 of 2 October 2019).

Economic redundancy : new transmission portal.

As from 2 December 2019, the RUPCO portal shall replace the PSE-RCC portal regarding the transmission of information relating to collective terminations on economic grounds (Administrative order of 21 October 2019, NOR : MTRD1927861A, Official Journal of 25 October).

Social security : presentation of the PLFSS for 2020 to the Council of ministers.

The social security financing bill for 2020 was presented to the Council of ministers on 9 October and is currently under review at the National Assembly [one of the two French houses of Parliament].  Among the subjects to be discussed: renewal of the exceptional purchasing power premium with a few adjustments, organization of the transfer of the recovery of the Agirc-Arrco contributions to the Urssaf…