Case law updates

Annual organization of working time in days (so-called “forfait-jours” mechanism): The forfait-jours mechanism does not mean an employee is totally free to determine their working hours. In a recent case, the Court of Cassation ruled that a veterinarian employee on forfait-jours who persisted in coming to work as they wished instead of adhering to the schedules their employer imposed was committing gross misconduct. The employer was able to enforce the employee’s half days or full days of work that aligned with appointments the clinic had booked with customers. (Cass. Soc. February 2, 2022, no. 20-15.744)

Freedom of expression: The dismissal of an employee for professional inadequacy is null and void if the employee did not abuse their freedom of expression. In this case, the employee, who was the managing director of a company, expressed their disagreement, without using offensive language, with the method chosen by the company’s management for the absorption of the company by the parent company. The employee's dismissal was linked, in part, to their comments. According to the Court of Cassation, since the employee did not abuse their freedom of expression, the dismissal must be considered null and void. (Cass. soc., February 16, 2022, no. 19-17.871)

Religious freedom: The Court of Cassation has noted that the disciplinary transfer of an employee who initially refused a transfer because of their religious beliefs is not discriminatory, providing that the transfer was justified by professional requirement due to (i) the employee's activity (in this case, a team manager in the cleaning sector, was assigned to work at a certain site because of a mobility clause), and (ii) the nature of the measure that made it possible to ensure the continuation of the employment relationship by assigning the employee to another cleaning site. (Cass. Soc., January 19, 2022, no. 20-14.014)

Variable compensation: In this case, the Court of Cassation ruled that an employee who had received an annual bonus based on their targets and later left the company in November, could only claim the bonus in proportion to the time they had been with the company during that year and not the total amount of the bonus corresponding to the entire year. (Cass. soc., February 9, 2022, no. 20-12.611)

Employee's prejudice: In two recent decisions, the Court of Cassation has extended its case law regarding certain failures of an employer that "necessarily" cause a loss to an employee. If an employee exceeds the maximum working time, this causes a loss to the employee and gives rise to a right to compensation (Cass. soc., January 26, 2022, no. 20-21.636). Similarly, the infringement of the employee's right to image gives rise to a right to compensation (Cass. soc., January 19, 2022, no. 20-12.420).

Moral harassment: The Court of Cassation has noted that to prove an employer has intentionally committed moral harassment, it is necessary to demonstrate that the employer was aware that their behavior was negatively affecting their employee's working conditions. (Cass. crim., February 22, 2022, no. 21-82.266)

Termination of an employment contract by a judge (résiliation judiciaire): The signing of a null and void forfait-jours mechanism is not in itself serious enough to prevent the continuation of an employment contract. The Court of Cassation confirmed the decision of a court of appeal that dismissed an employee's request for résiliation judiciaire, after declaring the forfait-jours mechanism null and void, on the grounds that the employee had not invoked the consequences of the required working time on the continuation of the working relationship. (Cass. soc., March 2, 2022, no. 20-11.092)

Agreed termination and non-compete clauses: An employment contract or applicable collective bargaining agreement may grant an employer the right to unilaterally waive the performance of a non-compete clause. The Court of Cassation has recently recalled that an employer who intends to exercise their right to waive the non-compete clause must do so at the latest on the termination date stated on the agreed termination form, notwithstanding any contrary provisions. (Cass. soc., January 26, 2022, no. 20-15.755)

Fixed-term employment contract: If one party fails to sign a fixed-term employment contract, the contract is not deemed to be in writing. Consequently, the employment contract may be reclassified as an open-ended contract. (Cass. soc., March 2, 2022, no. 20-17.454)

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