France: Do's And Dont's - Trial Period

Do:

• Expressly provide for the trial period in the employment contract: insert a clause indicating its conditions, duration, and its possible renewal if applicable (see below),
• The duration of the trial period is set by the Labor Code. It is 4 months long where so called "cadres" (exempts) are concerned and shorter for employees whose professional classification is lower,
• Different trial period lengths may also be provided for by industry wide collective bargaining agreements or the employment contract itself,
• Renewal of the trial period is only possible if the applicable industry wide CBA and the contract so provide,
• Termination of the employment contract during the trial period does not have to be explained and a rationale need not be provided. However, it should be notified in writing and within the applicable timeframe (to not result in the employment contract being performed beyond the term of the trial period).

Don't:

• Forget that the purpose of a trial period is to allow the employer to assess the employee's skills and performance. Therefore, terminating it due to reorganization for business reasons may be challenged,
• Terminate the trial period without formality or expect an immediate departure; the labor code provides for a specific notice period to comply with which varies depending on the length of the trial period,
• Terminate the trial period for disciplinary reasons. In case of misconduct, the disciplinary procedure provided for in the company's internal regulations must be complied with,
• Terminate the trial period for reasons such as pregnancy or any other illicit decision-making ground; the termination would then be deemed null and void and trigger either a forced reinstatement or damages.

New legislation

• Presumption of resignation in case of continued absence

As the law currently stands, when an employee is continuously absent and does not provide their employer with any information, the latter must formally compel the employee to come back to work. It is only if the employer is unsuccessful after having given this notice that a dismissal process (generally for gross misconduct) may be launched. The employee can therefore benefit from unemployment insurance, unlike, for the most part, employees who resign. The so-called "Labor Market" law dated December 21, 2022, created a presumption of resignation that applies to cases where employees are voluntarily and continuously absent.

Faced with such a situation, employers will still have to give formal notice (by means of a registered letter) to the employee requesting that he or she justify his or her absence and return to work within a certain timeframe (which is yet to be defined by decree). If the employee does not return to work, he or she will be deemed to have resigned. He or she may challenge this termination before the labor court (Conseil de prud'hommes). The latter should theoretically issue its decision within one month following the referral. Exact terms and conditions of this new measure will be determined by decree.

• Extension of social security measures for teleworking cross border workers

European regulation in relation to social security lays down a simple rule: a person working in several countries of the European Union can only contribute in one country. Thus, a person working in a border country and teleworking in his/her country of residence can only be subject to one social security system.

In this case, the frontier worker remains subject to the social security of his usual country of work if the work in his country of residence within the framework of telework does not reach 25% of his global working time / or of his remuneration.

This threshold is assessed over a calendar year.

If this threshold is exceeded, the worker will be affiliated to the social security system of his/her country of residence.

In the context of Covid crisis, it was decided that telework in these exceptional circumstances should not lead to a change in the affiliation of the worker concerned to his/her usual social security scheme.

This flexibility is expected to be prolonged until 30.06.2023 which means that even if teleworking more than 25% of this time in a different country where he resides, the employee will remain subject to the usual place of work social security regime.

The European legislation applicable to social security coverage in border and cross-border telework situations may change as of July 1^st, 2023.

Case law

• Dismissal of an employee refusing to adhere to the "fun and pro" culture of his employer ruled null and void

A consultant (manager in a consultancy firm) was dismissed due to various reasons including his expressed misalignment with the company's "fun and pro" culture and vocal criticism. He claimed that his dismissal was null and void as it was at least in part motivated by his opinion against said culture. He underlined the fact that the firm's culture involved Friday drinks, week-end parties and various events entailing drinking, and stressed that the partners encouraged inappropriate practices such as bullying and arguably overly close relationship between employees.

In a decision rendered on November 9^th, 2022, the French Supreme Court ruled in his favor. It reiterated the fact that employees enjoy freedom of expression which is a constitutionally protected right and cannot be disciplined for exercising this right in a non-abusive manner. The court also stressed that even if there were other grounds supporting the dismissal, the fact that one of the motives related to the employee's freedom of expression was enough to trigger annulment, in the absence of an abusive exercise of this right.

This decision highlights the extent to which "fundamental rights" have become increasingly present in the employment relationship and should be kept in mind when it comes to taking disciplinary action against an employee for his or her statements or opinions.

• An employee can only transfer to his personal email account professional emails that are useful for his defense

The French Supreme Court has already recognized that an employee may use, in the context of judicial litigation, corporate documents photocopied without the employer's knowledge. However, it sets two conditions that must be met for the employee to escape a conviction for theft:

• the employee must have obtained the documents during the performance of his or her duties,
• these documents must be necessary for the exercise of the rights of defense.

In a recent case, an employee had transferred 256 work-related e-mails to his personal e-mail account immediately after having been summoned to a meeting in view of his dismissal. His employer dismissed him for gross misconduct because of this.

The Court of Appeal held that there was no gross misconduct for the 4 following reasons:

• these professional documents sent before the preliminary meeting could be necessary for his defense,
• the employee was subject to a confidentiality duty,
• he had signed the company's I.T. policy which referred to the principle of confidentiality without expressly prohibiting the transfer of e-mails,
• the employer did not provide evidence that the documents were disclosed to third parties.

The French Supreme Court overturned this ruling on November 9^th, 2022, deeming that the Court of Appeal should have investigated whether the employee could justify that the documents were strictly necessary for the exercise of his rights of defense in the framework of the dismissal process. It is only on this condition that an employee can appropriate documents belonging to his or her employer.

• Itinerant employees' travel time can be effective working time

In a decision rendered on the 23^rd of November 2022, the French Supreme Court departed from its previous position in relation to an itinerant employee's travel time between his or her home and his or her first client, then between his or her last client and his or her home.

The Labor Code defines effective working time as "the time during which the employee is at the employer's disposal and complies with his instructions without being able to pursue personal interests. The time spent traveling to and from the place of work is not considered to be effective working time". However, the Labor Code provides that if it exceeds the normal travel time between home and the usual place of work, it is subject to financial compensation or rest.

As a result, and up until now, the French Supreme Court held that an itinerant employee could not be paid overtime for travel time between home and a customer's location. This position had been challenged by a March 9^th, 2021, CJEU ruling. In this decision, the CJEU deemed that the concepts of "working time" and "rest period" are legal concepts that should be defined according to objective characteristics, with reference to the system and purpose of Directive 2003/88/EC. According to the CJEU, Member States cannot make the right to have working periods and corresponding rest periods duly considered subject to any condition or restriction whatsoever.

The French Supreme Court therefore changed its position. It noted that in the case at hand, the employee had to make appointments and respond to his contacts during his travel time, and that he had to be at the employer's disposal and comply with his instructions, without being able to go about his personal affairs. Therefore, travel time had to be construed as actual working time and considered for the purpose of calculating overtime.

Looking forward

• Bill to adapt the Labor Code to European Union law

A bill adopted on the 24^th of November 2022, by the Council of Ministers aims to incorporate into French law two European directives of 2019. These changes should deal with:

• employment contract formalism (information to be sent to the employee within a certain timeframe),
• information on open-ended contract positions to be filled, at the request of an employee with a fixed-term contract or assignment contract who has been with the company for at least six months,
• the maximum duration of managers' trial period,
• the extension of guarantees in the context of family leave (severance pay calculation for a part-time employee on parental leave in particular).

• Changes to the 2017 « Macron » ordinances

The 2017 ordinances made sweeping changes to French labor law. An evaluation of this reform has been carried out and adjustments are being considered by the Labor Minister, particularly with regards to how "social dialogue" with staff representatives or unions may be improved. The Minister announced that discussions will take place in the upcoming weeks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.