Newsletter No. 171 – March 2023

ILLICIT EVIDENCE: Clarifications on the regime of evidence admissibility.

The production by the employer of images from a video surveillance device in the context of a legal dispute must be fair. In other words, the employee must have been informed in advance and personally of the implementation of such a device. However, the French Supreme Court (Cour de cassation) has considered since 2020 that the illegality of a type of evidence does not necessarily lead to its being rejected from the proceedings, provided that the infringement to the employee’s privacy is essential to the exercise of the right to evidence and proportionate to the aim sought. In this case, an employer who suspected an employee of thefts had set up a video surveillance system without notifying the latter. Dismissed for serious misconduct, the employee referred her case to the labor court to contest this measure. The trial judges considered that the production by the employer of the video footage constituted illicit evidence, neither essential to the exercise of the right to evidence nor proportionate to the aim sought. Indeed, the employer also had an audit as another means of proof not produced in the proceedings. The Cour de cassation confirmed this judgement in a decision of 8 March 2023, specifying that the employer could not produce an illicit type of evidence in court “as long as the latter had another type of evidence that he did not supply”, this type of evidence being “more respectful of the privacy” of the employee (Cass. soc., 8 March 2023, No. 21-17.802).

WORKING TIME: Business travel time and effective working time.

Effective working time corresponds to “the time during which the employee is at the disposal of the employer and complies with his instructions without being able to freely attend his personal affairs” (Art. L.3121-1 of the Labor Code). The “business travel time to get to the place of performance of the employment contract” is not considered as effective working time (Art. L.3121-4 of the Labor Code). In this case, an itinerant employee had requested the payment of extra hours, considering that the travel time between his home and the site of the first and last clients constituted effective working time. The Court of Appeal dismissed his claims and held that all of the counted travel time should be considered as business travel time, and that the employee was not at the permanent disposal of the employer prior to his departure in that he had a certain autonomy in the organization of his work. In a decision of 1 March 2023, the Cour de cassation quashed the decision of the Court of Appeal, by emphasizing that the latter had “found that the employee was subject to a provisional schedule for the maintenance operations and that, to carry out these operations, he used a service vehicle and was required to transport spare parts ordered by clients“, thus meeting the definition of effective working time provided for at Article L.3121-1 of the Labor Code. In this case, the disputed times were not to fall within the scope of article L.3121-4 of the same code (Cass. soc., 1 March 2023, No. 21-12.068).

PROOF OF PAY INEQUALITY: A female employee is entitled to obtain from the employer communication of the pay slips of male colleagues.

As a reminder, Article 145 of the code of civil procedure enables any interested party to request measures of instruction “if there is a legitimate reason to preserve or establish before any trial the proof of facts on which the solution of a dispute could depend “. In this case, an employee considered that she had suffered pay inequality compared to male colleagues occupying or having occupied positions comparable to hers. She had therefore referred her case to the formation of summary proceedings of the labor court to obtain, on the basis of the aforementioned article, communication of elements of comparison held by her two successive employers. The Court of Appeal had considered that the employee was justified in “obtaining communication of the pay slips of eight other employees occupying positions of a level comparable to hers in managerial, commercial or market functions, with concealment of personal data with the exception of the last names and first names, of the conventional classification, of the detailed monthly remuneration and the cumulative total gross remuneration per calendar year”. The Cour de cassation confirmed this decision, noting that the infringement on other employees’ privacy was essential to the exercise of the right to evidence and proportionate to the aim sought, “i.e. the defense of the legitimate interest of the employee to equal treatment between men and women in matters of employment and work” (Cass. soc., 8 March 2023, No. 21-12.492).

CONVERSION OF A CDD (FIXED-TERM CONTRACT): Clarifications on the indemnity consequences of a conversion of a CDD into a CDI (permanent contract).

An employee may obtain, before the labor court, the conversion of his fixed-term employment contract into a permanent contract, which allows him to benefit from certain rights. Through the retroactive effect of this conversion, the employee must be placed in the situation of a permanent employee of the company. The calculation of the various indemnities must therefore fully take into account the effects of the contractual conversion. In this case, three employees had requested the labor court to grant them the conversion of their CDD into a CDI. The Cour de cassation specifies, in three decisions of 8 February 2023, the rules relating to the calculation of the indemnities that may be received by the employee in the event of a conversion. It asserts, firstly, that the amount of the conversion indemnity provided for at Article L.1245-2 of the Labor Code must be calculated according to the average of the monthly salary due under the contract in the last state of the employment relationship before referral to the labor court. This average must be determined with regard to all the salary elements, including when they have a periodicity greater than a month. With regard to back pays, the Cour de cassation considers that the sums that may have been paid to the employee, intended to compensate for the situation in which he was placed because of his fixed-term contract, remain with him, notwithstanding a subsequent conversion into a permanent contract. As a result, the employee can claim payment of the specific premiums due to the employee under a permanent contract. The Cour de cassation also approves the judges of appeal in that they have, to calculate the amount of the compensation for dismissal without real and serious cause, taken into account the sums received by the employee in respect of the gross base salary which were definitively due to him, and this in exact application of Article L.1235-3 of the Labor Code. In addition, the same must be done to calculate the amount of the conventional severance pay. Finally, the compensation in lieu of notice must be calculated with regard to the sums that the employee would have received in application of the status of permanent worker which had been recognized for him, which implies to base its calculation on the reconstituted theoretical salary corresponding to the CDI (Cass. Soc., 8 Feb. 2023, No. 21-16.824No. 21-10.270No. 21-17.971).