Health, safety and working conditions / Legislation and Case Law in France / Second Semester 2021

This newsletter reviews five recent significant judicial decisions on health, safety and working conditions:

• The employer’s lack of action following a complaint of sexual harassment compromised the validity of an amicable termination agreement with the employee concerned (Cass. soc., 4-11-2021, n° 20-16.550)

An employee reported to her employer that she had been sexually harassed by her supervisor. The employer did not take any measures to remedy the situation and entered into an amicable termination agreement with the employee.

After this amicable termination had become effective, the employee brought an action before the labour court to seek its cancellation, arguing that her consent was invalid because of the sexual harassment which she had suffered. 

The lower courts found in favour of the employee. The employer then appealed to the Supreme Court. The employer argued that it had not put pressure on the employee to force her to sign the amicable termination agreement, referring to precedents which state that the pre-existence of a dispute related to the employment relationship does not, in itself, affect the validity of the termination agreement.

The French Supreme Court confirmed the trial judges' position. According to the Court, in refraining from taking measures to protect the employee following her report of sexual harassment, the employer exercised a form of indirect pressure on her consent. The employee found herself faced with an unacceptable situation, which could only worsen, which forced her to accept the amicable termination agreement.

Key takeaway: The employer must take action when harassment is reported. Its lack of action is necessarily wrongful and can only compromise its position, in this case, its ability to rely on the employee's free and informed consent to the amicable termination of her employment contract.

• Paid leave: the burden of proof lies with the employer (Cass. soc., 29-9-2021, n° 19-19.223)

After the bankruptcy of the company that employed him, an employee claimed that he had not taken paid leave during a specified period and asked for an indemnity in lieu of paid leave.

The trial judges dismissed his claim because he had not proved that he was not on vacation during the specified period. The employee then appealed to the Supreme Court, arguing that the burden of proof that he had taken his leave lay with his employer.

The Supreme Court agreed with him. It stated that it was the employer's responsibility to put the employee in a position to exercise his right to leave and, in the event of a dispute, to justify its actions. Consequently, the Court of Appeal wrongly reversed the burden of proof by requiring the employee to prove that he was not on leave.

Key takeaway: We strongly advise employers to keep a precise and regular record of working hours and rest periods, so that in the event of a dispute the employer can provide formal proof thereof. With regard to the taking of paid leave, this can be done, for example, by setting up a written request and confirmation procedure with the HR department, or requiring self-declared statements of working hours and rest periods to be provided to managers each month.

• Keeping an employee who is unfit for work in a situation of forced inactivity for a long period of time justifies the judicial termination of the employment contract - with fault and expense attributed to employer, even when the salary is maintained (Cass. soc., 4-11-2021 n° 19-18.908)

After several months off work, an employee was found unfit for work by the occupational physician. His employer then offered him several redeployment opportunities, which he turned down. The employer did not take any action and continued to pay the employee's salary, but did not provide him with any work.

The employee filed a claim for judicial termination and the trial judges terminated the employment contract at the employer's fault and expense. They considered that the employer had wrongfully suspended the employment contract by deliberately keeping the employee in a situation of forced inactivity, this breach being sufficiently serious to justify the judicial termination of the contract – with fault and expense attributed to the employer. The employer appealed to the French Supreme Court, arguing that it was not obliged to terminate the employment contract of an employee who had been declared unfit for work and had refused offers of redeployment.

However, this appeal was unsuccessful. The Supreme Court considered that when an employee declared unfit for work refuses offers of redeployment, it is up to the employer to make new redeployment suggestions or to dismiss the employee.

Key takeaway: This decision reminds employers that, even when an employee has been declared unfit to work, and although it may seem favorable to the employee to continue to pay them without assigning them any activity, this is contrary to the French concept of labor relationships, according to which the salary is the counterpart of a work provided by the employer.

• The status of senior manager with regards to working time depends on each individual’s circumstances (Cass. soc., 4-11-2021, n° 20-18.813)

An employee was hired as a manufacturing manager, to manage one of his employer's manufacturing facilities. When dismissed by his employer, he claimed back pay for overtime and paid vacations.

The trial judges dismissed his claims on the grounds that he was a senior manager (cadre dirigeant), who could not benefit from working time regulations and, in particular from the legal, regulatory and collective bargaining provisions relating to maximum working hours, overtime, daily and weekly rest periods, public holidays or any rest days related to the conditions of organisation of his working time. The employee challenged this decision and appealed to the Supreme Court.

His appeal was dismissed. The Supreme Court stated that executives are considered to be senior managers (cadre dirigeant) if they (i) are entrusted with responsibilities whose importance implies a high degree of independence in the organisation of their work schedule, (ii) are empowered to make decisions on a largely autonomous basis, and (iii) receive remuneration that is among the highest levels of remuneration paid in their employer’s company or business. These cumulative criteria mean that only executives who are involved in the management of the company fall into this category. According to the Supreme Court, it is a matter of fact to be decided at the sole discretion of the trial judges whether an individual falls within this category.

In this case, the Court of Appeal found that (i) the employee had a very large degree of autonomy in his decisions regarding product orders and manufacturing, without any involvement of the company's CEO, (ii) he had disciplinary authority over the employees at his plant as plant manager, (iii) he received the highest salary at the facility, (iv) he was free to arrange his own schedule, and (v) he was the only manager at the facility in direct contact with the CEO, who also managed other companies and visited the facility only occasionally.

On the facts of the case, the employee was clearly part of the management of the company and could not avoid being classified as a senior manager (cadre dirigeant).

Key takeaway: The satisfaction of the criteria to qualify an employee as a senior manager (cadre dirigeant) requires a concrete approach, on a case-by-case basis. Any senior employee - not just the most senior leader / CEO of a company - may satisfy the legal criteria, and have the status of senior manager (cadre dirigeant).  This will be decided on the individual’s factual circumstances, on a case-by-case basis.”

• Regular use of overtime is a modification of the employment contract (Cass. soc., 8-9-2021, n° 19-16.908)

An employee was dismissed for gross misconduct after having refused to work overtime on several occasions. He disputed this dismissal, claiming that his employer's systematic use of overtime had resulted in a change in his weekly working hours, without his prior consent having been obtained. 

The trial judges found in favour of the employee. The employer then appealed to the Supreme Court, arguing that overtime was part of the normal performance of the contract, part of its decision-making power, and that resorting to overtime within the legal quota and for business reasons did not amount to a modification of the contract, even if such a practice was customary.

However, the Supreme Court approved the trial judges’ decision. Regular use of overtime, which increased the employee's weekly working time from 35 to 39 hours, had resulted in a modification of his employment contract without his express consent. Consequently, the employee’s refusal to agree to this modification was not wrongful and did not qualify as a real and serious reason for dismissal.

Key takeaway: If an employer can foresee that it will need to ask an employee to work overtime regularly, it would be advisable to agree the additional hours formally in advance (in a lump sum agreement) to avoid the issues highlighted by this case.