Selected case law - France / First semester of 2020

This newsletter summarises six significant judicial decisions over recent months.

The presumption of a full-time employment contract can be successfully challenged by the employer (Cass, Soc., 18 December, n°18-12.643).

On retirement, a part-time employee made a request to a court to reclassify her contract as a full-time employment contract in order to obtain back pay and the termination of her employment contract at the employer’s expense.

Even though the employment contract did not mention either the number of working hours or when they would be worked, which gave rise to the legal presumption of full-time employment, the employer succeeded in rebutting this presumption.

The judges found in favor of the employer because they considered that it had shown that the employee did not have to be permanently at the employer’s disposal, by providing proof of the exact working time agreed upon, and of the existence of highly flexible working arrangements which took into account the employee's family needs.

The appointment of a trade union representative within the company renders the unilateral introduction of time off in lieu of overtime null and void (Cass, Soc., 29 January 2020, n°18-16.001).

In the absence of a trade union representative appointed within the company, the employer replaced, by unilateral decision, an overtime wage increase with time off in lieu.

A few years later, the appointment of a trade union representative put the employer under an obligation to conduct annual mandatory negotiations which should include overtime compensation. However no agreement was reached on the issue with the union representative and the employer continued to compensate overtime with time off in lieu.

The court of appeal, approved by the Supreme Court, held that legally the employer's unilateral decision became null and void when the trade union representative was appointed. The appointment of the union representative prevented the employer from deciding unilaterally on the replacement of the overtime wage increase with time off in lieu. As a result, the employees were entitled to payment for the overtime.

Whistleblower protection is not absolute. It can be abused (Court of Appeal of Amiens, 9 January 2020, n°18/00584).

An employee was dismissed for gross misconduct after he sent a letter, in threatening terms, making allegations about various infringements of labor, criminal and environmental law by his employer.

Even though the employee had followed the formal process for making his allegations to the company, the judges noted that before sending the letter, the employee had not approached employee representative bodies or the competent authorities, as well as the employee's lack of objectivity and failure to put his allegations into context.

The judges validated the dismissal. They found that the employee’s breach of his duty of loyalty in making false accusations in order to negotiate the termination of his employment contract constituted gross misconduct.

The expiry of the time limit for consultation of the works council (“SEC”) may be overridden by a subsequent Court decision (Cass, Soc., 26 February 2020, n°18-22.759).

During a consultation period between EDF and its SEC, the SEC filed an application before the civil court before expiration of the time limit for delivering its opinion, to request an extension of the deadline until such time as EDF had communicated to it the information necessary for the SEC to give an informed opinion.

Previously, the absence of a court decision on the day of expiry of the consultation period meant that the absence of an opinion could be regarded as a negative opinion from the employee representatives.

Departing its previous case law, the Supreme Court found that as the application had been filed with the court within the consultation period, the court could order an extension of the consultation period, even if on the date of its ruling the consultation period had expired.

The minutes evidencing the result of elections must be drawn up immediately after the counting of the votes (Cass, Soc., 27 May 2020, n°19-13.504).

A trade union requested a declaration from a court that employee representative elections were invalid because the employer failed to have the minutes drawn up immediately after the end of the count, and because the minutes did not contain details of objections made about the validity of the ballot.

The Supreme Court upheld the union's claim and quashed the Court of Appeal's decision, which had dismissed the union’s claim on the grounds that it had not shown that the alleged irregularities had distorted the results.

The Supreme Court held that the failure to comply with the requirement to draw up the minutes immediately after the counting of the votes could affect the integrity of the electoral process, and constituted an irregularity that, on its own, justified the annulment of the elections.

Providing to a security company the phone number of the employee to be reached in the event of an alarm being triggered creates an on-call period for which the employee must be financially compensated (Cass, Soc., 24 June 2020, n°18-23.777)

An employer gave to the company in charge of the store's remote surveillance the telephone number of the employee to contact for action in the event of an alarm being triggered outside the store's opening hours.

Further to a claim brought by the employee, the Supreme Court, upholding the Court of Appeal's ruling, ordered the employer to pay the employee financial compensation for the on-call periods.

The judges held that providing the details of the place where the employee can be reached outside working hours, so that he can intervene quickly should the need arise, creates on-call work periods.