Case law updates
Macron scale of compensation due for unfair dismissal: The application of the so-called Macron scale that provides for caps and floors of compensation due in the event of unfair dismissal set forth by Article L. 1235-3 of the French Labour Code was set aside by the Paris Court of Appeal in a decision rendered on 16 March 2021 (Court of Appeal of Paris, 16 March 2021, n° 19/08721). The Judges considered in the present case that the Macron scale did not ensure “a relevant and appropriate compensation of the loss suffered by the employee”. The Paris Court of Appeal followed in the footsteps of several other courts of first instance which, while admitting the conformity in abstracto of the Macron scale with Convention n° 158 of the International Labour Organization (ILO) have arrogated to themselves the right to set it aside should it not allow in concreto for adequate compensation of the loss suffered by the employee in case of unfair dismissal. The position of the French Supreme Court on this new rebellion of the courts of first instance against the Macron scale is awaited with interest, as it had concluded in the context of a specific opinion procedure1 that the Macron scale was in conformity with the Convention n° 158 of the ILO (Cass. soc., AP. 17 July 2019 n° 15013).
“Forfait jours” mechanism2: The French Supreme Court recently reiterated that failure of the employer company to comply with its legal and conventional obligations in relation to the “forfait-jours” mechanism, the individual “forfait-jours” agreement is unenforceable, the employee being free to make overtime claims (Cass. soc., 17 February 2021, n° 19-15.215). Keeping in mind that on their side, the employer company could request the reimbursement of the additional rest days the employee had benefited from in counterpart of the “forfait-jours” mechanism (Cass. soc., 6 January 2021, n° 17-28.234). In the present case, the employer company was unable to demonstrate that it had organized between 2005 and 2009 the annual meeting provided for by the collective agreement that implemented the “forfait-jours” mechanism to discuss the workload, the organization of work within the company, the relationship between the employee's professional activity, their personal life and their compensation.
Discrimination: The French Supreme Court reminded that in the absence of a “neutrality clause” in the company's internal regulations (“règlement intérieur”)3 prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, since this general and undifferentiated clause only applies to employees who are in contact with clients, the employer company cannot forbid the wearing of the Islamic headscarf (Cass. soc., 14 April 2021, n° 19-24.079). In the absence of such a neutrality clause, the dismissal of an employee who refused to remove their Islamic headscarf constitutes a discrimination based on the employee’s religious beliefs and her dismissal must be held null and void.
Redeployment obligation: When contemplating a redundancy, the employer company has the obligation to search for available redeployment solutions in France within the group of companies it belongs to among the companies whose organization, activities or place of business ensure the permutation of all or part of the staff. In its decision rendered on 17 March, 2021 (Cass. soc., 17 March 2021, n° 19-11.114), the French Supreme Court specifies that, when liaising with the other companies of the group, the employer company has no obligation to mention the profile of the employees whose redundancy is contemplated (age, education, experience, qualification or seniority) in the letters circulated to the other companies in the course of the redeployment searches.
Dismissal held null and void4: When the dismissal is held null and void, the employee may request their reinstatement in thier previous job position, or failing that, in an equivalent job position. As reminded by the French Supreme Court in its decision rendered on 10 February 2021 (Cass. soc., 10 February 2021, n° 19-20.397) the employer company has no other choice than to reinstate the employee who made such request unless it is able to demonstrate that the reinstatement is materially impossible. In this decision, the French Supreme Court considers that the fact the employee found a new job since their dismissal does not constitute a material impossibility.
- When receiving a request made by courts of first instance in the context of a “procédure d’avis” (opinion procedure), the French Supreme Court only expresses its general opinion on the compliance of French law with international conventions.
- French law provides a “forfait jours” mechanism, which is a type of organization of employee working time based on a fixed number of working days per year (usually 218 days) with no reference to any working hour and which may be implemented in certain circumstances. As a counterpart of this mechanism, the employee benefits from additional rest days.
- The internal policies (“règlement intérieur”) are a mandatory document in companies employing at least 50 full-time employees. This document addresses limited topics such as discipline, hygiene and safety and moral/sexual harassment.
- Under French law, some dismissals can be held null and void e.g. if the dismissal results from a prohibited discrimination, a moral/sexual harassment, etc. In case of dismissal held null and void, the employee benefits from an option of being either reinstated or allocated with compensation for null and void dismissal.
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