France: This Is A Contribution To The European Employment Law Update - August 2012.

REDUNDANCIES – RECENT AND FUTURE DEVELOPMENTS - THE FRENCH SUPREME COURT HAS RULED THAT WHERE AN EMPLOYMENT CONTRACT TERMINATES AS A RESULT OF A TERMINATION AGREEMENT SIGNED BY AN EMPLOYER AND AN EMPLOY-EE, THE EMPLOYEE CANNOT CHALLENGE HIS TERMINATION LATER

- Impact date: 8 February 2012

The Supreme Court overturned the decision of the Grenoble Court of Appeal which had allowed an employee to challenge the economic grounds for termination of his employment. The Grenoble Court of Appeal had based its decision on the principle of equal treatment of redundant employees as employees who are terminated on the basis of a dismissal letter are allowed to challenge the economic rationale included in that letter.

The Supreme Court's decision is based on Article 1134 of the Civil Code which provides that "agree-ments lawfully entered into take the place of the law for those who have made them. [...] They must be performed in good faith".

In other words, an employee who has reached an amicable agreement to terminate his employment contract cannot subsequently change his mind and go to court to claim damages for unfair dismissal.

This will be the case not only when the employee signs an individual termination agreement but also when the termination agreement is signed on the back of a collective agreement entered into with un-ions in the context of a reduction in the workforce.

EMPLOYEES ARE ENTITLED TO HOLIDAY PAY FROM THE FIRST DAY OF WORK

- Impact date: 1 June 2012

Article L.3141-3 of the French Labour Code (as amended by law n° 2012-387 of 22 March 2012) provides that employees are entitled to paid holidays as soon as they start work. The new law will enter into effect from 1st June 2012.

Before the new law, the right to paid annual leave was available only after the employee had worked a minimum of 10 days with the same employer. However, the 10 day requirement was held to be contrary to the EU Directive n°2003/88/EC dated 4 November 2003.

NEW TELEWORKING REGULATIONS INTRODUCED INTO THE FRENCH LABOUR CODE

- Impact date: 4 March 2012

The French law n° 2012-387 of 22 March 2012 has introduced into the French Labour Code three new articles (L.1222-9 to L.1222-11) dealing with teleworking.

According to the new law, which came into force on 4 March 2012, employers are required to comply with the following obligations:

  • collect employees' written consent to teleworking by having them sign an employment contract or an addendum to the employment contract;
  • detail procedures for monitoring employees' working time in the employment contract or the ad-dendum to the employment contract (in the absence of a provision within a collective bargaining agreement);
  • bear all the teleworking-related costs (e.g. subscription to the Internet)
  • inform the employees of any restrictions relating to the use of computer equipment and sanctions for failure to comply with those restrictions;
  • give teleworking employees priority to take an unrelated teleworking position that is appropriate for their skills and experience;
  • have an annual meeting with the employees to address any issues on work conditions and workload;
  • set time schedules during which the teleworking employees can be contacted.

Most of the above provisions were already included in the nationwide inter-professional agreement of 2005. However, that agreement was only binding for certain employers. The teleworking provisions are now mandatory for all employers doing business in France.

EMPLOYEES WHOSE ANNUAL WORKING TIME IS BASED ON A FIXED NUMBER OF DAYS CAN GET DAMAGES FOR ILLEGAL WORKING IF THEY DID NOT SIGN AN ADDENDUM TO THEIR EMPLOYMENT CONTRACTS AUTHORISING THE ARRANGEMENT

- Impact date: 28 February 2012

The working time system based on a fixed number of days per year does not entitle workers to an overtime payment in consideration of work done. However, this system is valid only if it is expressly authorised in a collective bargaining agreement and if the employee previously signed an addendum to his employment contract.

Employers who failed to sign an addendum with their employees cannot hold them to the fixed days system, which means that employees can claim an overtime payment if they can prove that they worked above 35 hours a week. Employers can also be ordered to pay a 6 month salary indemnity to the employees for illegal work, according to the ruling by the French Supreme Court.

The Supreme Court's ruling is somewhat surprising as until that decision the only way for an employee to claim for illegal work against the employer was to prove that the latter had failed to mention the exact number of hours worked on the pay slips.

It is therefore of the utmost importance for employers to collect employees' written approval by asking them to sign an individual addendum to their employment contracts prior to them starting work.

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.

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