French employment law update – December 2022

13 December 2022
Jacques Perotto, Maxime Hermes, Anne-Sophie Houbart and Eloïse Ramos

Keep it in mind #2: Update your company’s risk assessment document

Employers are required to assess the occupational risks and to implement prevention activities, working methods and production to mitigate them.

The results of this assessment are recorded in a document available to the employees, the occupational physician, the Labor Inspector and the staff representatives.

This document must be updated every year.

Failure to establish or to update such document is punishable by a fine of up to € 7,500.

Case law: Working time arrangement in days over the year does not grant total freedom to set working hours

Employees with a certain level of autonomy may be subject to a working time arrangement in days over the year, in which cases they benefit from a certain degree of independence to organize their working time.

This doesn’t mean a total freedom, without consideration of professional obligations, as recently ruled by the French supreme court: constraint related to the organisation of the work by the employer (such as meetings for example) shall be taken into consideration.

French Supreme Court – 22nd February 2022, n°20-15.744

New regulation on whistle blowing

Since 1st September, the whistleblowers status has been modified:

  • The definition is wider, and more situations are covered;
  • The whistleblower has now an immediate choice between internal and external (administration bodies) channels of diffusion;
  • Protection has been enhanced: no civil liability, extension of the scope of the lack of criminal responsibility, no possible retaliation for the associations and Trade unions helping the whistleblower;
  • The company’s internal policy shall remind the existence of a protective status for whistleblowers.

Do not hesitate to reach out on the multiple features of this status.

Law 2022-421, 21st March 2022

Article: Guidelines on internal investigation about harassment

Anne-Sophie Houbart introduces a few recommendations on how to handle an investigation, in light of the most recent cases law of the French Supreme Court.

Case law: dismissal of an ill employee

Dismissing an ill employee in consideration of illness is discriminatory and therefore void.

By exception, an employee may be dismissed if:

  • her/his continued or successive sick leaves disrupts the functioning of the company;
  • there is no satisfying temporary solution to manage the situation;
  • the employee is permanently replaced shortly after her/his dismissal.

These conditions are very strictly appreciated: the Supreme Court recently confirmed that the disruption of a service/unit is insufficient: the employer shall demonstrate and mention the disruption of the whole company.

French Supreme Court, 6 July 2022, n°21-10.621

Case law: content of the dismissal letter

Since 2017, the employee may request clarification on the grounds of the dismissal letter within 15 days of the dismissal. It was not yet clear whether the employer must inform the employee of this possibility or not.

The French supreme court ruled that it is not mandatory for the employer to mention such opportunity, which may therefore be removed from the templates.

French Supreme Court – 29th June 2022 – n°20-22.220

Jacques Perotto, Partner, Maxime Hermes, Anne-Sophie Houbart, Eloïse Ramos, Associates.