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    Decision by the Social Chamber of the French Supreme Court dated September 12, 2018
    (Cass. Soc. 12 September 2018, n° 16-11.690)

    As per a September 12, 2018 decision, the French Supreme Court (called “Cour de cassation”) answered the following question: Can an employee who denigrates his/her employer in a limited and closed group on Facebook be dismissed for gross misconduct ?

    In the case at hand, an employee created a closed group on Facebook entitled “Extermination des Directrices chieuses” (Extermination of Crappy Directors) in which the employee made insulting and threatening remarks about her immediate supervisor. Upon becoming aware of the remarks, the employer dismissed the employee for gross misconduct.

    The Supreme Court confirmed the Court of Appeal decision, ruling that the dismissal was without good and sufficient cause, and therefore unjustified, as the remarks had been posted in a closed group to a limited number of people. In fact, the group had been set up by the employee and could only be accessed by people she had authorised, namely 14 people. As such, the Supreme Court ruled that it was a private conversation.

    The Supreme Court clearly made a distinction between public remarks (open groups, large number of people) and private remarks (closed group, limited number of people) to justify a dismissal for gross misconduct.

    This decision deserves credit for dispelling certain doubts that existed before, since this is the first time the Supreme Court has ruled on the legitimate character of a disciplinary dismissal for a cause such as this one. However, it gives rise to other questions.

    Indeed, as the Supreme Court retained two cumulative conditions, both the closed group and the limited number of people, it is logical to wonder if the decision would have been the same if the closed group had been made up of a large number of members or if the group members had been the company’s employees.

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    Bénédicte Litzler will attend to the 26th Conference of Avocats Conseils d’Entreprises, on the 27th and 28th of September in Antibes.
    Member of the Social Law commission, she will be part of all Social Law Workshops.

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    Decision by the Social Chamber of the Court of Cassation dated May 3, 2018 (Cass. Soc. 3 mai 2018, n°17-11.048).

    While it is customary for an employer to request certain personal documents for operational purposes, there is nevertheless sensitive information in an employee’s private life that an employer is not allowed to request.

    Requesting documents pertaining to an employee’s personal life does not necessarily characterize infringement on the right to privacy in their private and family life. That is the conclusion that should be drawn further to a ruling by the Social Chamber of the Court of Cassation dated May 3, 2018 (Cass. Soc. 3 mai 2018, n°17-11.048).

    To justify her claim for damages, an employee referred to a clause in her employment contract requiring that she informs her employer of any changes occurring to her name (marital status), family situation, or place of residence.

    The question put to the Court of Cassation was therefore to know whether the employer could, based on that clause, lawfully collect such information.

    The Court of Cassation judges answered in the affirmative, even though the laws on the matter are clearly established and protect employees from excessive interference by the employer in the employee’s private life (*). Indeed, the judges considered that the Court of Appeal had validly held that “the information requested was necessary in order for the employer to assure the employee’s rights” and that, as such, the litigious clause could not constitute a breach of the employee’s fundamental rights and freedoms.

    By means of the present ruling, the Social Chamber reiterated the scope of the notion of ‘interference in an employee’s privacy’ and rejected such a condition when the request for personal information is in the employee’s interest.

    (*) Article 9 of the French Civil Code, Article 8 of the European Convention on Human Rights, and Article L1121-1 of the French Labour Law.

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    In order to promote the use of telework, Article L.1222-9 of the French Labour Law from the “Ordonnance Macron” n°2017-1387 dated September 22, 2017 and modified by the Bill of ratification on March 29, 2018 simplifies the means for implementing telework.

    From now on, an employment contract no longer needs to be modified to allow an employee to “telework” (work remotely).

    A telework situation can be implemented on the basis of one of the following 3 means:
    – a charter drawn up by the employer,
    – a collective labour agreement,
    – a simple agreement with the employee (verbal, postal or email agreement, etc.).

    Article L.1222-9 of the French Labour Law does indeed foresee that, in the absence of a charter or collective labour agreement implementing the telework situation, the employee and employer may officialise their agreement to use this type of work arrangement by any means whatsoever.

    The third means of implementation, previously only possible in the event of “temporary” use of telework provided for in the initial Law, has been extended by the Bill of ratification to all types of use of telework, whether temporary or permanent.

    Although a verbal agreement may suffice, a detailed, written one is nevertheless preferable, in particular for the sake of proof in case of a dispute.

    Moreover, and when telework is organised on the basis of the collective agreement or charter, the Law requires that the conditions for switching to telework be specified, in particular in the event of an air pollution episode.

    That specification made in the Bill of ratification actually echoes the Bill, proposed by the senators in January 2018, aimed at promoting telework in the event of an air pollution episode.

    Lastly, whatever the means for implementing telework, the Law specifies that the rights of teleworkers remain identical to those of employees performing their work on the company premises.

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    Following its referral by 60 members of Parliament, the French Constitutional Court recognize nearly all of the Bill of ratification of the “Ordonnances Macron”, including that on the implementation of the new “CSE”.

    The text, adopted on February 6 & 14, 2018 by the French National Assembly, followed by the Senate, will remain almost unchanged on the day of its promulgation.

    Ordonnance n°2017-1386 dated September 22, 2017 on “the new organization of social and economic dialogue within the Company” merges the three current employee representative bodies – the Employee Delegates, the Works Council and the Committee on Hygiene, Safety and Working Conditions (referred to as “Délégués du Personnel”, “Comité d’Entreprise” and “CHSCT” in French ) – into a single body named: Social and Economic Council (“CSE”).

    Establishing a CSE is compulsory for all companies with at least 11 employees. Its duties vary depending on the number of employees, as was foreseen up until now for companies with the Employee Delegates or Works Council.

    The CSE must therefore progressively replace the former bodies representing the personnel (IRP), in such a way that they will have completely disappeared by January 1, 2020.

    In practice, the CSE must be established at the end of the term of the former IRP, when one of the abovementioned institutions is being renewed and at the latest by December 31, 2019.

    For this purpose, the Ordonnance organizes the possibility of extending or shortening the terms underway, so that the end of the term coincides with the date the CSE is established.

    Take note: the rules for possibly extending or shortening the term underway depend, firstly, on the date the pre-electoral agreement protocol was signed and, secondly, on the date the current term expires.

    Latest News:

    When the term of the former IRP reaches its expiry date:
    – in 2018: the length of the term may be shortened or extended for at most 1 year;
    – in 2019: the length of the term underway may also be shortened
    (addition by the Bill of ratification adopted in the Senate on February 14, 2018).

    The Constitutional Court censured solely one provision, on the CSE. The employer shall not be exempt anymore from organizing partial elections in case of annulment of election of the CSE members on lists that fail to fulfil the obligation of a balanced representation of men and women (Decision n° 2018-761 DC dated March 21 2018).

    The Bill of Ratification should be promulgated in the French Journal Officiel shortly.

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    The book written with Anne-Françoise Chaperon and Marie-Edith Alouf has a broad approach of the subject, with both psychology and law.

    More about the book here.

© Schmidt Brunet Litzler