A Legal Update from Labor and Employment Practice Group – Paris

July 15, 2015

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Claims for compensation for untaken holidays: who has the burden of proof? (Social Law Chamber, Supreme Court, May 12, 2015 n° 13-20349) 

An employee went to court in order to challenge his dismissal. He made various claims against his employer, including one for compensation for untaken vacation. 

Following an EC directive of 2003 which established the right of all employees to a minimum of 4 weeks of vacation every year, the French Supreme Court previously ruled that it is for the employer to prove that he has taken all steps to enable the employee to take his holidays; Failure to do so led to the payment of compensation by the employer to the employee who did not take all his accrued vacation days, in due proportion of these untaken vacation days.

On May 12, 2015, the French Supreme Court changed the rules on the burden of proof. From now on, it will be shared between the employer and the employee, as follows: 

  • The employer has the burden of proof for the first 4 weeks of vacation days, corresponding to the minimum imposed by the EU. 
  • The employee will have the burden of proof for any holiday time he may have above these 4 weeks each year. 

This will make it easier for the employer but more complex for the courts. 

It is fine to terminate an employment contract amicably during a maternity leave. (Social Law Chamber, Supreme Court, March 25, 2015 n°14-10149) 

An employee had agreed on the amicable termination of her employment contract while she was on maternity leave. Then she challenged this termination in court, claiming that her termination was void. 

French judges rejected her claim, changing their position from previous cases and arguing that even if the agreement to the amicable termination was given while on maternity leave, it was valid and so was the amicable termination. 

This position may seem surprising since, as a matter of principle, amicable terminations cannot validly be concluded during a period of suspension of the employment contract. Nevertheless, this position has been softened by judges who first admitted in 2014 that amicable termination agreements may be entered into by an employee on sick leave after a work related accident. This decision on March 25, 2015 shows that French judges wish to continue to soften the rules to facilitate amicable terminations. 

Text messages sent or received on a professional mobile phone can be accessed by the employer as they are presumed to have a professional character. (Commercial Law Chamber, Supreme Court, February 10, 2015 n°13-14779) 

In the middle of a litigation opposing two companies, one of them asked for judicial permission to have a bailiff report on the content of the professional mobile phone of one of its employees. 

The issue presented before the court was whether the protection offered to private correspondence would prevent the employer from having access to these text messages. For the first time the Commercial Law Chamber of the French Supreme Court held that the text message sent or received by an employee through his professional mobile can be read by the employer. It is solely when the text message is identified as personal that such access is limited, i.e. it can be accessed but either in the presence of the concerned employee or the latter being duly invited to be present. 

With this decision, the Commercial Law Chamber endorsed a decision similar to the one already adopted by the Social Law Chamber of the French Supreme Court regarding documents on employees’ professional computers. These documents are indeed presumed professional, and the employer can have access to them without the employees’ presence unless identified as personal. 

This solution is now extended to text messages. 

An economic reason does not necessarily justify the redundancy of an employee victim of a work-related accident or occupational disease. (Social Law Chamber, Supreme Court, February 18, 2015, n° 13-21820) 

A Sales Director was made redundant during the suspension of his employment contract after a work-related accident. The redundancy was justified by the reorganization of his employer which led to the elimination of his position. 

The French Supreme Court considered that the justification provided for the redundancy was not sufficient to show the impossibility to maintain the employee’s contract, which is a legal requirement after a work accident. 

That decision is a confirmation of existing case law. It is a useful reminder of the specific protection existing in France for victims of work-related accident or occupational disease during the suspension of their employment contract. 

The employee’s freedom of speech has a limit called abuse. (Social Law Chamber, Supreme Court, May 6 2015, n°14-10781) 

An employee posted statements on a website to report that one of his colleagues had been dismissed by his employer after asking to apply the French Labor Law provisions within the company and that he had been threatened and blackmailed by his manager during internal meetings. 

The employer considered that his employee had abused his freedom of speech and dismissed him for serious misconduct. The employee challenged his dismissal in court. 

The French Supreme Court ruled that the dismissal was unfair as the employee did not abuse his freedom of speech. The court considered that he was right to post comments on this website in such a conflicting situation, taking into consideration that it was a nearly confidential website (as it was accessible only to members who had a membership subscription) and the words used were not offensive nor vexatious.

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