French employment law update – July 2022
Jacques Perotto, Maxime Hermes, Anne-Sophie Houbart and Eloïse Ramos
Keep it in mind #1: Working time in days: don’t forget the annual interview!
Each year, employees who are subject to a working time scheme set up in days (“forfait jours”) must benefit from an interview aimed at discussing their workload, the balance between their personal and professional life, their remuneration and the organization of working time within the company.
This interview must be separate from the performance review and must be documented.
In the absence of such an interview, the “forfait jours” may be deemed void, allowing the employee to request the payment of overtime and/or damages.
Case law: Validity of the “Macron” damages scale
In 2017, the French government set up a scale of indemnification for dismissals deemed without cause, with ceilings for damages.
Some Labor and Appeal Courts dismissed the application of this scale, based on the interpretation of European and international rules.
The French Supreme Court ruled on this matter in two recent decisions: the scale is validated and may not be quashed by judges.
French Supreme Court – 11th May 2022, n°21-14.490 and 21-15.247
Social database: environment indicators
Companies with more than 50 employees shall implement a social database with various indicators regarding finance and HR topics. Such database shall now be completed by indicators related to the environmental impact of the company’s activity. These indicators may be agreed through a company-wide collective bargaining agreement. If not, a recent decree sets the items to be integrated, which includes: waste management in the company, assessment of the environmental impact of the company, energy and water consummation and emission of greenhouse gas.
Decree 2022-678 of April 26th 2022
Article: Deliveroo France found guilty of undeclared work
The Paris Criminal Court convicted the platform Deliveroo and three of its former managers of “undeclared work”.
Jacques Perotto and Quentin Kéraval present their analysis of the decision.
Case law focus: working time
(i) The French Supreme Court is aligned on EU case law, and ruled that an employee who exceeded the maximum working time is automatically eligible to damages without having to prove the existence of a prejudice.
The French Supreme court thus created a new exception to the principle established in 2016, according to which the existence and extend of prejudice must be demonstrated by the plaintiff.
French Supreme Court – 26th January 2022, n°20-21.636
(ii) A Company which does not justify having taken the necessary measures to ensure that the workload of an employee subject to working time scheme set up in days (“forfait jours”) remains reasonable fails in its obligation of safety. The plaintiff employee is thus entitled to damages for the resulting prejudice.
French Supreme Court – 2nd March 2022, n°20-16.683
Case law: intentionality of moral harassment
Moral harassment is both a civil and criminal offense. However, there is a major difference between both qualifications:
- According to employment law, moral harassment is qualified independently of the author's intention as long as the behavior meets the legal definition.
- On the contrary, for moral harassment to be qualified as a criminal offence, it is mandatory to prove the author’s intention to harass the employee.
The French supreme court recently confirmed this principle and ruled that to be criminally liable, the employer must be "aware of the degradation of working conditions".
French Supreme Court – 22nd February 2022, n°21-82.266