Case-law selection - France / Second Half-Year 2017

1. Dismissal for sick leave: The disruption of one of the company’s key services may justify a dismissal (Cass. soc. 23 May 2017, No.14-11.929). 

The employer is not allowed to dismiss an employee based on his medical condition nor his disability, except if it is proven that a disruption of the business has occurred and is due to the sick employee’s extended leave or repeated leaves, thus requiring a permanent replacement of the said employee. 

Case law usually requires a disruption of the company as a whole and not only of the service in which the employee carries out his tasks. In this case, the French Supreme Court has taken a more flexible position and accepts the sole disruption of a single service to be sufficient if and only if it is one of the company’s key services. 

2. Complementary welfare insurance compensation: The employer can be recognized as liable if he did not remind the employee that he/she had to provide the complete documentation required by the insurance institution (Cass. soc. 22 June 2017, No.16-16.977). 

An employee was requiring the payment of damages by his employer because of the lack of coverage by the insurance institution. The employer had completed all the administrative requirements falling on his part but did not make sure the employee had sent to the insurance institution the summary of the daily allowances paid by the base state-funded social security system. Even though the employer had been warned by the insurance institution that the employee had not provided this document, the employer had failed to reach the employee in order to inform him of this omission. 

According to the French Supreme Court, the employer should have asked the employee to send these documents.

3. Protection of an employee who reports psychological harassment: The employee cannot benefit from this type of protection if he did not make an explicit reference to psychological harassment (Cass. soc. 13 September 2017, No.15-23.045). 

An employee’s dismissal based on the reporting of psychological harassment behavior is considered as null and void, except if it is proven that the employee acted in bad faith, i.e. that he knew his allegations were false. In this case, the French Supreme Court further restricts the protection granted to such employees and requires the terms “psychological harassment” to specifically be used by them. 

In this particular case, the employee had let his employer know he was the victim of “an abject, undermining and extremely unfair treatment” without making explicit reference to “psychological harassment”. 

Therefore, the French Supreme Court considers he could not be eligible for the protection guaranteed by the law and the dismissal could not be qualified as null and void. 

4. Amicable termination and deceit: In order for the amicable termination to be cancelled, the lack of information provided by the employer regarding the statutory job protection plan must have been decisive in the employee’s choice to give his/her consent about the termination (Cass. soc. 6 October 2017, No.16-21.202). 

Considering that her consent was invalid because the employer did not inform her of the company’s upcoming reorganization and the related implementation of a statutory job protection plan, an employee who signed an amicable termination not long before that reorganization’s implementation requested the nullity of the amicable termination. Indeed, she considered she could have benefited from higher benefits under this plan. 

The French Supreme Court considers that since the employee did not prove that had she been informed about this statutory employment plan she would not have agreed to the termination, the amicable termination could not be cancelled. 

5. Calculation basis for the extra contractual severance pay provided by a statutory job protection plan: The statutory job protection plan may validly determine a calculation basis different from the one provided for the minimum severance pay by the industry-wide collective bargaining agreement (Cass. soc. 7 September 2017, No.16-12.473). 

An employee was dismissed as part of a redundancy which gave rise to a statutory job protection plan. In relation to this, she received a severance pay computed as per the applicable industry-wide collective bargaining agreement as well as an extra contractual severance pay as per the statutory job protection plan. 

Considering that the calculation basis provided for by the statutory job protection plan had to be aligned with the calculation basis provided for by the industry-wide collective bargaining agreement, she challenged the calculation method of the extra contractual severance pay. 

The employee’s claim was rejected by the French Higher Court which confirmed that the statutory job protection plan could provide a calculation basis different from the one provided for by the industry-wide collective bargaining agreement. 

Furthermore, the French Supreme Court reminds us that as the amounts resulting from stock-options are not considered as salary, they should not be included in the calculation of the industry-wide collective bargaining agreement severance pay (unless provided otherwise by the texts establishing such payments). 

6. Moral harassment and institution of civil action proceedings by the employer: The action for damages before the criminal court by the employer is admissible (Cass. crim. 14 November 2017, No. 16-85.161). 

A company brought civil proceedings before the criminal court along with several employees who were victims of sexual and psychological harassment by their supervisor. 

Considering that the employer cannot demonstrate a direct damage resulting from the harassment behavior, the French Supreme Court used to refuse filing of action for damages by the employer. 

In this case, the French Supreme Court changes its position by deciding that the company could validly file an action for damages since it proved that the harassment behavior had discredited the company towards its other employees since the offender exceeded the hierarchical powers he had been granted by the company. 

Therefore, the company obtained payment of €500 as damages. 

This solution also applies to cases in which the dismissal was not based on a willful misconduct.

Read in French: Sélection de jurisprudence Droit Social - France / Second semestre 2017