French employment law update – March 2023

23 March 2023
Jacques Perotto, Maxime Hermes, Anne-Sophie Houbart and Eloïse Ramos

Funfact #2: for a game ticket bought, get a complimentary exemption

Long live sports! Gifts offered (tickets, transport, accommodation…) by Works councils or employers to their employees for the 2023 Rugby World Cup or the 2024 Summer Olympics (both organized in France) will be exempt from social security contributions up to a limit of 25% of the Monthly Social Security Ceiling (i.e. €917 in 2023) per calendar year and per employee.

Case law: wet or scanned signature?

Numerous conditions apply for a signature to have the same probative value as a wet signature. However, the Supreme Court ruled that a scanned handwritten signature does not constitute the absence of signature.

Interest: The Court therefore adopts a pragmatic approach; challenging the validity of a scanned signature of a document should therefore be limited to situations where, for example, there is a doubt about the identity of the signatory or the intent to sign.

French Supreme Court – 14th December 2022 – n°21-19.841

Calling an employee to announce their dismissal directly: not such a good idea

An employee must be notified of dismissal by registered letter with proof of delivery.

Thus, an employer calling an employee to announce the dismissal decision, on the same day as the dismissal letter is sent takes the risk of seeing the dismissal deemed verbal, and consequently unfair.

Warning: Although, in such a situation, the judge must determine which happened first, it will be particularly difficult to demonstrate the chronology of the facts on the same day. The employee has to prove that the conversation with the employer took place first.

French Supreme Court – 28th September 2022, n°21-15.606

Case law: scope of a mobility clause

Is a mobility clause providing that the employee may be transferred to any other establishment of the company or subsidiary of the group applicable?

According to a constant position of the French Supreme Court, an employee cannot accept in advance a change of employer.

Warning: Consequently, a mobility clause providing that an employee undertakes any transfer from their workplace to another establishment of the company or subsidiary of the group located in France is null and void.

French Supreme Court, 14th December 2022, n°21-18.633

Focus: freedom of speech and “contamination” of the dismissal

Even though an employee had made threats and refused to perform some of his duties, as the employer also reproached him for challenging the group’s strategic choices (= freedom of speech), the dismissal was null and void.

Indeed, the Supreme Court ruled that when the dismissal letter mentions a reason linked to an employee’s fundamental right (e.g. freedom of speech), the dismissal is automatically null and void.

This applies even when other grounds were mentioned and could have justified the dismissal: the latest is definitely “contaminated” by the violation of the right.

Consequently, the “Macron scale” (damages cap) doesn’t apply and the financial exposure can no longer be controlled.

Alerion’s advice: drafting the dismissal letter requires the exclusion of any mention of a ground which could be related to a fundamental right.

Case law: working time monitoring and remote work

The employer shall monitor the working time of employees, and in particular check and ensure the employee doesn’t exceed the maximum work duration.

This principle is consistently applied by French jurisdictions. In a recent case, the Supreme Court specified that this also applicable when the employee is working remotely even though the company is not in a physical position to perform any checks.

Alerion’s advice: Make sure you have implemented tools to monitor working time of employees working from home!

French Supreme Court – 14th December 2023 – n°21-18.139

Case law: The content of the agenda on the work computer is presumed to be professional.

Unless the employee identifies them as personal, folders and files created on the computer provided by the employer for work purposes are presumed to be professional. Therefore, the employer may access these documents without the employee’s presence.

While this solution is systematically rendered by the judges, the French Supreme Court also recently ruled that the data from an employee’s electronic agenda is presumed to be professional.

Interest: Such data may therefore be used as lawful evidence by the employer in case of litigation.

French Supreme Court, 9th November 2022, n°20-18.922

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