Galion Newsletter - Employment Law, France

Published 16 June 2016

Termination of the employment contract: the consequences of the absence of reclassification proposal to the employees who accepted voluntary redundancy as part of a PES without commitment not to lay off.

In a landmark judgment, the Supreme Court states that "  when voluntary departures in a backup plan of employment are addressed to employees whose dismissal is contemplated because of downsizing without commitment not dismiss if the goal is not reached by amicable ruptures employment contracts of those concerned, the employer shall, in respect of these employees perform the prior obligation of reclassification provided in the plan , by offering available and suitable to their circumstances jobs in group companies whose activities, organization or place of their operating permit swapping all or part of the staff  . " A failure to execute prior obligation to redeploy provided in terms of job preservation, breaking employment contracts for economic reasons produces the effects of dismissal without just cause (Cass. Soc., May 19, 2016, n ° 15-12137 to 15-12148).

 

 

Termination of the employment contract: Details of the extent of the obligation to state the economic reasons in the letter of dismissal.

In this case, an appeals court had ruled a dismissal without real and serious cause, in particular, that the letter of dismissal was exclusively state economic difficulties of the company without any reference to the industry's situation her group. The Supreme Court censured the judgment, considering that "  if the termination letter must state economic reason for dismissal as provided by Article L.1233-3 of the Labour Code and the material impact of this on economic cause employment or the employment contract of the employee, the assessment of the existence of the reason given notes of the discussion before the judge in case of dispute " and that it is not necessary that"  [the letter of dismissal]  specify the level of appreciation of the economic issue when the company belongs to a group; that only in case of dispute it is for the employer to prove, in the relevant scope, the reality and seriousness of the reason given  " (Cass. Soc., May 3, 2016, No. 15-11046) .

 

Representative bodies: sanctions irregular deficiency IRP.

The Supreme Court clarified the scope of Article L.1235-15 Labour Code as it emerged from the recodification of former Article L.321-2-1 of the Labour Code, which provided that "  in companies employing less than fifty employees where the works council has not been set up so that no deficiency of minutes and was established in enterprises employing at least eleven employees where no staff representative n ' was set up when no deficiency report has been established, any economic redundancies taking place without that, therefore, the disclosure requirements, meeting and consultation of the Committee of business or staff representatives are respected, is irregular and the employee and licensee is entitled to compensation that can not be less than one month's gross salary, without prejudice to severance pay and notice which is otherwise due. " If the new article L.1235-15 Labour Code no longer contains the reference to the obligation of information-consultation, the Court of Cassation clarifies that the recodification intervened to established law and that it follows that Article L.1235-15 the Labour Code applies only to collective redundancies. Thus, the compensation resulting from the irregular deficiency IRP is not due in case of individual dismissals for economic reasons (Cass. Soc. 19 May 2016, No. 14-10251).

 

Professional elections: the consequences of the cancellation of elections on union designations.

In this case, the question arose after the cancellation of elections, the fate of the appointment of shop stewards and union representatives on the works council, which can only be designated by representative trade union, that is ie having among others received 10% of votes cast in the first round of the last elections. The Court of Cassation confirms its position that the judgment of annulment of professional elections has no retroactive effect. She believes that "  the cancellation of elections does not affect the regularity of designations as a union representative and a union representative on the works council." However, she adds that maintaining union office expires at the new elections renewing the representative body of staff (Cass. Soc May 11, 2016, No. 15-60171).

 

CSD requalification CDI: starting point for seniority in case of discontinuous CSD.

In this case, the appeal court had reclassified in a CDD CDI as of December 13, 2004, rejecting the request payment of amounts under the seniority on the grounds that there was no evidence the persistence of the employment relationship between 2007 and 2009. the Court of Cassation censorship that judgment, because "  by the effect of the reclassification of fixed-term contracts, the employee was deemed to have held a permanent job since the day of her engagement by an irregular term contract and that it was entitled to rely on this as a seniority dating back to that time  "(Cass. Soc. May 3, 2016, No. 15-12256).

 

Employment tribunal procedure: publication of the reform implementing decree initiated by Macron law of August 6, 2015.

Towards the objective of accelerating the employment tribunal procedure, the decree provides inter alia the removal of specific rules of the uniqueness and the instance expiration. It mandates call representation by a lawyer or a union supporter from 1 st August 2016. The proceedings commenced after that date must contain a summary of the reasons for the request accompanied by documents. The new conciliation board and guidance sees its role strengthened implementation status. The new judgment formations are created to improve the timeliness of case processing. The decree also sets the proceedings before the district court in case of appeal against a decision of the administrative authority in pre-election matter. It further states the conditions of referral to the opinion of the Court of Cassation by the ordinary courts in interpretation of conventions and collective agreements (D. No. 2016-660 of 20 May 2016, OJ 25 May).