Case law update – France / Second Half-Year 2018

1. Multiple jobs: The employee who refuses to provide information concerning his other job may be dismissed for gross misconduct (Cass. soc. 20 June 2018, No.16-21.811)

 

An employee who refuses to provide information to his employer relating to her other job prevents the employer from checking whether limits on maximum working times are being complied with, and the employee may therefore be dismissed for gross misconduct.

 

In this case, an employee had a part-time job in addition to her full-time job. When she was hired she told her new employer that she had no other commitments. Her employer later discovered that this was untrue, and asked her to provide him with a copy of her other employment contract and related pay slips. The employee failed to provide these documents, and the employer dismissed her for gross misconduct. The French Supreme Court ruled that the dismissal was justified. The Supreme Court also stated that this situation was likely to adversely affect the employee’s health and safety, especially given the employee’s pregnancy.

 

2. Discrimination related to in vitro fertilisation (IVF) treatment: An offer to reduce the working hours of an employee who had just informed her employer that she would be taking a period of sick leave due to IVF treatment constitutes discrimination (Cass. soc. 28 June 2018, No. 16-28.511)

 

An employee had taken two 15-day periods of sick leave each due to IVF treatment. A few months later, she decided to undergo further IVF treatment, and informed her employer that she would be taking another period of sick leave for the treatment. The employer then offered to reduce her weekly working hours from 35 to 30 hours.

 

The employee brought an action before the labour court to obtain the judicial termination of her employment contract, in particular because she claimed to be the victim of discrimination.

 

The French Supreme Court held that the proposed reduction in working hours implied the existence of discrimination on the basis of the employee’s health. It therefore approved the judicial termination decided by the court of appeals. This termination was then legally treated as null and void and the employee was awarded damages.

 

3. Evidence in support of dismissal: Anonymous testimonies alone cannot justify the employer’s decision to dismiss (Cass. soc. 4 July 2018, No. 17-18.241)An employee was dismissed on the basis of anonymous witness statements, following an investigation conducted by her company’s ethics department.The French Supreme Court overturned the court of appeal’s decision that, on the basis of the anonymous witness statements, the dismissal was justified.

 

The French Supreme Court refers in its decision to Article 6(1) of the ECHR providing the right to a fair trial.

 

The Court stated that when the employer relies on anonymous witness statements the employee being accused is prevented from properly disputing the truth of the charges brought against him or her.

 

4. Maternity leave and bonus: A bonus which is conditional upon the employee’s presence at work is not payable during maternity leave (Cass. soc. 19 September 2018, No. 17-11.618)

 

In this case, a company in the banking sector transferred one of its business activities to an Italian subsidiary belonging to the same group. Following a strike, the parties agreed that employees responsible for passing on their know-how to the teams of the Italian subsidiary would receive a co operation bonus.

 

An employee who was on maternity leave at the time, claimed the payment of this bonus, considering that the refusal to pay was discriminatory.

 

The French Supreme Court dismissed the employee’s claim stating that the company could validly refuse to pay this bonus to the employee on maternity leave, since she did not meet the condition of active and effective participation in the transfer of know-how to, and the training of the Italian teams, and that these payment conditions were objective, measurable and lawful.

 

5. Reclassification of a fixed-term contract as an indefinite-term contract: An employee succeeded in having his dismissal declared null and void because he was on sick leave following an occupational accident at the time his fixed-term contract ended (Cass. soc. 14 November 2018, No. 17-18.891)

 

The employee first succeeded in having his fixed-term subsidised employment contract reclassified as an indefinite-term employment contract, on the basis of the employer’s failure to comply with its training obligation required by this type of employment contract. The employee then argued that termination of an indefinite-term contract is prohibited during a period of sick leave resulting from an occupational accident.

 

The French Supreme Court ruled that since the termination of the fixed-term contract (reclassified as an indefinite-term one) occurred during a period of sick leave resulting from an occupational accident, the dismissal was considered null and void.

 

6. Civil liability of trade unions: A trade union may be held liable for unlawful acts committed by its officials during a demonstration (Cass. ch. mixte 30 November 2018, No. 17-16.047)

 

This includes a situation where the official has not himself done the unlawful acts but has provoked others to do so.

 

In this case, the leader of an agricultural trade union publicly called on its members to load their trucks with tyres and to unload them in front of the entrance gates of a Lactalis factory. He then met the employees at a roundabout to discuss the next steps, and was present when the tyres were then set on fire, resulting in damage to the gates of the factory.