French Labour Law Newsletter

• France

• Employment law

19-10-2017

Case Law Update

1. Annual package in days

The provisions of a collective company agreement establishing an annual day package system that does not guarantee compliance with reasonable working time and daily and weekly rests cannot be enforced against employees where such provisions merely provide that each employee will enter their weekly working time in a time management system, that a summary statement of the time worked per employee will be set up each month for the month M-2 and given to the line management, that a presentation will be made on an annual basis to the follow-up committee on such agreement, that the rest between two days of work is at least 11 consecutive hours, and that the employee will have at least a day of rest per week, insofar as failure to provide for an effective and regular follow-up by the line management of the summary statements transferred to it, allowing the employer to remedy in due time where the workload is incompatible with a reasonable working time, these provisions cannot guarantee that the working hours and workload remain reasonable and do not ensure a proper distribution in time of the interested employees’ work.

In the case at hand, the six employees had been hired by the same company as consultant – executive status under a contract that provided for an annual package in days, in accordance with a company agreement on the organisation of the working time of consultant and administrative executives. The French Supreme Court for civil matters (Cour de cassation) has confirmed the judgment of the Court of Appeal (CA Paris, 30 June 2016, Pôle 6, 8^th ch., six decisions including No 15/07265) that ruled that the package agreements could not be enforced against the six employees and awarded them back salaries for overtime, plus related paid holidays.  (Cass. soc., 5 October 2017, No 16-23.106)

2. Unfair competition by a former employee

The followings are considered as unfair competition revealing the intention to cause harm: the fact for a former employee to keep strategic files, to give confidential information to his new colleagues on products sold by his former company, and to canvass such former company’s customers. In the case at hand, the employee has been finally sentenced to pay to his former employer €50,000 as damages for non-compliance with his duty of loyalty and confidentiality. (Cass. soc., 6 October 2017, No 16-14.385)

3. Fake medical certificates

The French Supreme Court  for administrative matters (Conseil d’État) has confirmed that the employer referring to the disciplinary board of the medical association (Ordre des médecins) the delivery of a fake certificate to an employee, does not breach the doctor-patient confidentiality and the doctors’ right to a fair trial. In particular, the Conseil d’État reminds that occupational doctors, like all other doctors, must comply with the ethical obligations imposed on their profession, and especially the compliance with the prohibition on the delivery of fake certificates. However, it points out that the disciplinary judge will have to take into account occupational doctors’ specific practice conditions because, due to their duties, they have access to a large number of information on the operation of the company and the employees’ working conditions. (CE, 11 October 2017, No 403576)

Social welfare

Negotiation of the unemployment insurance agreement

The Government is currently initiating the negotiation of the new unemployment insurance agreement by receiving each of the social partners before issuing the guidance document that will be used by the social partners to negotiate. Among the measures already announced by President Macron during the television interview last Sunday, firstly, a bonus/penalty system on ongoing contracts (and not only fixed-term contracts) for companies and, secondly, the possibility for resigning employees to benefit from the unemployment insurance.

Overhaul on employees’ savings plans

In the same television interview, President Macron announced a new overhaul on employees’ savings plan in the first half-year 2018. No information is however available on the major change of the overhaul.