Originally published February 2010
Decree N° 2010-64 Of 18 January 2010, Modifying Article D1234-6 Of The Labour Code - Changes In Training Rights And New Requirements For Employees' Work Certificates
Employees accrue training rights throughout their employment contract, and where they have not used these rights before termination, can continue to benefit from the funding corresponding to the number of hours accrued in order to benefit from training sessions. This has recently been extended to enable employees to benefit from these rights after the end of their employment contract, provided that their termination enables them to benefit from unemployment benefits.
It has always been necessary to inform employees of the number of hours accrued during their employment. Now, pursuant to Decree n° 2010-64 of 18 January 2010, employers must include the following indications in the work certificate:
- The number of hours the employee is entitled to;
- The sum corresponding to this number of hours (on the basis of €9.15 per hour); and
- The relevant OPCA training organisation which will finance the employee's training during periods of unemployment.
Employees can still request to use their training rights during their notice period, in which case the company is required to finance the training session, up to the cost of the relevant number of hours. The cost for the company has now been altered and amounts to €9.15 per hour of training rather than 50% of the employee's net salary per hour.
REPORTED CASE LAW
Cass. Soc. 02/12/09 N° 08-44656 - Length Of Service Shorter If The Employee Accepts The CRP
Contrary to the case law applied to the previous State-run redeployment scheme that redundant employees were entitled to, the Cour de Cassation has held that the calculation of an employee's severance pay should not take into account the notice period that would have been due if the employee had refused the Personalised Redeployment Agreement (Convention de reclassement personnalisée - "CRP"); the date of termination of the employment contract being at the end of the employee's 21-day decision period.
This therefore results in a reduction of the employee's length of service, and therefore a reduction in severance pay.
Cass. Soc. 13/01/10 N°08-15776 - Only The Employer Is Bound By The Obligation To Redeploy Employees And Draw Up A Collective Redundancy Plan
The French courts have consistently held that where a company which is part of a larger group makes employees redundant, it is required to search for redeployment opportunities within the entire group, not just the employing company itself with this obligation extending beyond French borders to other group companies abroad.
In the instant case, it was held that the requirement to search for redeployment and draw up a collective redundancy plan in line with the group's means is only binding on the employer itself. As such, another group company cannot be held liable if the employing company does not comply with its obligations.
This case is particularly relevant to company closures, where the employing company is wound up and as such no longer exists. The employing company not being able to engage another group company means directly, it cannot be required to do so.
This does not mean that the employing company is not required to propose redeployment in other entities, but simply limits other group companies' liability in the event that insufficient steps are taken to do so. The employing company remains liable for insufficient measures.
Cass. Soc. 25/11/09 N° 08-43008 - Renewal Of Trial Periods: The Employee Must Confirm Acceptance, Not Simply Sign A Renewal Letter
It is only possible to renew an employee's trial period if the employee accepts this renewal. This is the consistent case law applied by the French courts, therefore any renewal that is imposed on an employee can be considered as invalid, the employee therefore automatically being definitively hired and any termination being subject to termination procedure.
In this decision of 25 November, the Cour de Cassation held that where provided for by the employment contract, the trial period could indeed be renewed if the employee was in agreement. However, the issue as to what defines agreement was raised. It was held that simply signing a letter drafted by the company confirming that the employee's trial period was to be renewed was insufficient to demonstrate the employee's agreement. Although the court did not specifically state what would constitute agreement, it has been held in other cases, and therefore can be applied by analogy, that the employee must hand-write that they expressly accept the renewal.
This adds an additional formality for the company, but it is important to comply with this as failing to do so would result in the second trial period not being valid, and the employee therefore being definitively hired.
Cass. Soc. 18/11/09 N°08-43397 - Transfer Of Business: No Obligation To Inform Individual Employees, No Direct Effect For The Directive
Employees who were transferred to a transferee company through ARD transfer rules claimed damages for not being informed prior to the transfer, as required by the Directive 2001/23/EC.
The Cour de Cassation held that under French law there is no obligation to inform individual employees of their transfer, which is automatic and cannot be refused by the employees as in certain other States. Individuals cannot rely on the Directive directly in order to impose obligations on other individuals. Indeed, Directives cannot have horizontal direct effect (against another individual), and are only vertically directly effective (i.e. against the State and emanations of the State).
Despite this decision, we would always recommend informing employees of their transfer, for reasons related to human resource management.
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