French employment law update – January 2022
Jacques Perotto and Maxime Hermes
Stereotype #1: French 35-hour working week
This is the legal working time. However, many other schemes (e.g. working time calculated in days) are possible, as well as the possibility to do overtime. On average, French employees work 39.1 hours a week and executive employees 43.1 hours.
Case law focus: obligation of reinstatement at the end of an expatriation
The French Supreme Court confirmed that the legal obligation of reinstatement at the end of the expatriation only applies when an employee is sent from a parent company to a subsidiary, not between subsidiaries.
Also, contractual provisions on reinstatement are interpreted strictly: beware of the way they are drafted!
French Supreme Court – 10th Nov. 2021, n°20-10.954
Taking into consideration the consequent new wave of pandemic, the health protocol at work has been updated:
• a minimum of 3 days per week of remote working is required (when the job is compatible).
• Convivial times are suspended.
• Recommendations on ventilation of premises are reinforced.
Case law focus: variable remuneration
The case law doesn’t include any obligation to negotiate between the company and its employees to set performance objectives. However, when the contractual clause on variable remuneration states that a commitment is made each year to set the employee’s objectives, the employer failing to do so shall pay the maximum variable remuneration provided in the employment agreement.
This decision is a new illustration of the importance to clearly set the variable remuneration conditions (through the contract or a policy) and to apply them strictly.
French Supreme Court – 4th Nov. 2021, n°19-21.005
Remote working: bill proposal to porvide a lump sum and voucher
A proposal has been submitted to the French Parliament to porvide people working remotely with a lump sum and voucher. In the proposal, the lump sum would be up to 600€/year and would be exonerated of social contributions and tax. It could be provided as vouchers, comparable to lunch voucher.
Case law focus: amicable termination
(i) While a situation of harassment is not per se an obstacle to an amicable termination, the latest can be deemed as void if the situation is so unbearable that the employee’s consent to the termination is affected.
French Supreme Court – 4th Nov. 2021, n°20-16.550
(ii) It is not possible to mutually terminate an employment contract outside of an “official” amicable termination process. However, the purpose of a transfer from one company to another within the same group is to continue the contract and not to terminate it, following the amicable termination process is not necessary.
French Supreme Court – 17th Nov. 2021, n°20-13.851
Article of the month: Reorganizations – beyond the law
As technical handling a social plan can prove to be, it is first and foremost a matter of organizing the work within a multidisciplinary team and avoiding pitfalls.
Jacques Perotto and Maxime Hermes present an overview of what you need to know to manage a successful restructuration process.