Log Book No. 84 – December 2015
Mandatory medical check-ups : difficulties with occupational medicine are not an acceptable justification for employers’ own failures.
A terminated employee brought various claims before the labour court. In particular, they claimed that their employer failed to fulfil its duty of care, due to there being no pre-employment health check-up or regular check-ups. The employer argued that it had complied with the necessary steps, producing proof of payment of the relevant contributions and registered letters for check-up appointments to be made. The Supreme Court found in favour of the employee, ruling that “the employer must ensure effective implementation of its duty of care in terms of health protection and safety for workers in the company.” Failure to do so on the part of the employer was necessarily prejudicial to the employee (Cass. Soc., 9 Dec. 2015, no. 14-20.377).
Discipline : photocopying one’s payslips may be deemed to be a breach of property rights.
An employee was terminated for serious misconduct for having photocopied the copies of their payslips held by their employer, as they were no longer in possession of their own copies. The employee argued that this did not constitute misconduct, as the employer was obliged to supply them with payslips. They also argued that an employee may reproduce documents of which they have been aware during the course of their duties, if they require these to exercise their defence rights in a labour court dispute with their employer. However, the Supreme Court ruled that this termination was justified: the employee had taken documents belonging to the company without the prior permission of their employer, to make copies of them; this constituted a breach of property rights (Cass. Soc., 8 Dec. 2015, no. 14-17.759).
Co-employment : no co-employment if there is not commingling of interests, activities and management.
A subsidiary was put into compulsory liquidation one year after being bought out by a Group. The trial judges noted a loss of autonomy for this subsidiary, as well as a dependent relationship between the managements of the two companies and interference in personnel management and strategic decisions. However, the Supreme Court ruled that “the directors of the subsidiary come from the group and work closely with the parent company; during the months immediately following the takeover of the subsidiary, the parent company took decisions aimed at reorganising the latter as part of the group’s policy, then reversed its decision to provide the subsidiary with financial aid to avoid its compulsory liquidation; it was also involved in attempts to redeploy employees within the group. However, these facts do not in and of themselves constitute co-employment.” The Supreme Court noted that co-employment is constituted by “commingling of interests, activities, and management, as evidenced by interference in economic and labour management” in the other company (Cass. Soc., 10 Dec. 2015, no. 14-19.316).
Staff representatives : a notice to attend sent out electronically to the members of the Company Health and Safety Committee is valid.
Members of the Company Health and Safety Committee requested their employer to hold a one-off meeting. All the members of the Company Health and Safety Committee were invited to this meeting and were sent the agenda by e-mail, by means of a mailing list entitled “chsct.cis-paris.fr”. The secretary of the Company Health and Safety Committee disputed this means of serving notice to attend, on the grounds that it was impossible to know whether each member had been invited individually. The French Supreme Court validated this means of serving notice to attend, specifying that the French Labour Code does not require any particular form for notices to attend sent to the members of the Company Health and Safety Committee. However, the mailing list must include the e-mail address of each member of the Company Health and Safety Committee (Cass. Soc., 25 Nov. 2015, no. 14-16.067).
Secondment : suspension of international provision of services in the event of fraud.
A decree in application of the Macron specifies the conditions in which the labour inspectorate may suspend provision of services performed in France by a foreign employer. If there is a breach of rest time, the minimum wage, or working hours, or if working conditions incompatible with human dignity are noted, the inspector is to order the employer to rectify the situation within a period of 3 days. Failing this, the French labour authority (DIRECCTE) is informed by a report, and must invite the employer to submit their comments within 3 days. The labour authority may then decide to suspend the provision of services until the situation is rectified by the employer, for a maximum period of one month (Decree no. 2015-1579 dated 3 Dec. 2015, French Official Journal dated 4 Dec.).
Social security decision : a simplified and extended procedure.
The rescrit social social security procedure entitles contributors to obtain an explicit decision from collection bodies as to how legislation on social security contributions is applied. The decision is then binding on the relevant body, unless there is a change in legislation or the de facto circumstances. Following a new order, this no longer applies only to a restricted list of contributions, but to all social security contributions. A request for a decision may be made by a contributor, but also by a duly authorized third party (chartered accountant or lawyer) and by representative trade unions for applications specific to their professional industries. This social security procedure is also open to companies wishing to secure their collective agreements and action plans for equality between men and women, or to check the application of legislation concerning the obligation to employ disabled workers (Order no. 2015-1628 dated 10 Dec. 2015, French Official Journal dated 11 Dec.).
Redeployment abroad : simplified procedure for companies.
Since the Macron Act, there no longer needs to be a systematic attempt to achieve redeployment abroad in the event of redundancy in an international company or group. An employer must now inform the employee of the possibility of receiving offers of redeployment abroad. The employee then has a period of 7 working days to make a request in this respect. The employer must then send them precise, written offers, i.e. including the name of the employer, location, job title, compensation, nature of the employment contract and working language. The employee must inform the employer of their acceptance or refusal prior to a prescribed deadline, which may not be less than 8 days (Decrees no. 2015-1637 and 2015-1638 dated 21 Dec. 2015, French Official Journal dated 22 Dec.).