Employment Case Law Selection - France | First Semester of 2024

• Cass. soc., 31 January 2024, n°22-18.792

A dismissal letter does not have to specify the date of the alleged acts.

An employee dismissed for gross misconduct contested the termination of his employment contract, citing the absence of any mention of the date on which the acts of gross misconduct were committed.

The Court of Appeal agreed, finding that the dismissal letter lacked precision.

The employer considered that it had been sufficiently precise, as it set out in detail in the letter the reasons justifying the dismissal, in particular the employee's opposition to and questioning of her superiors' instructions, inappropriate behavior in her work relationships, and her deliberate disregard for the reserve, loyalty and exemplary behaviour required in her position.

The French Supreme Court was convinced by this reasoning and held that, while the letter of dismissal must state precise and materially verifiable reasons, it was not necessary to give dates of the acts concerned. In the event of a dispute, the employer will have to provide proof of all the factual circumstances that justify the grounds of dismissal.

• Cass. soc., 14 February 2024, n°22-23.073

Video surveillance evidence admissible in court.

Following a series of rulings on December 22, 2023 in which the French Supreme Court opened up the rules of evidence by permitting the admission of evidence obtained by illicit or unfair means, the social chamber of the French Supreme Court has issued a ruling on video surveillance.

A store had noted unjustified discrepancies between its sales and its inventory. A video inspection of a cash register revealed 19 serious anomalies in less than 2 weeks, leading to the dismissal of an employee for gross misconduct.

The trial judges ruled that the evidence was admissible on the grounds that the production of personal data from the video surveillance system was essential to the exercise of the employer's right to present evidence, and was a proportionate way of achieving the aim pursued.

The French Supreme Court upheld this reasoning, ruling that the Court of Appeal had carefully balanced the employee's right to privacy against the employer's right to the smooth running of the business, taking into account the legitimate aim pursued by the company, namely to ensure the protection of its property.

• Cass. soc., 13 March 2024, n°22-20.970

Sexual harassment cannot justify the loss of a bonus.

An employee working for a credit institution was dismissed for gross misconduct on grounds of sexual harassment, particularly because he had sent messages with sexual connotations to several of his subordinates. He contested the validity of his dismissal and requested payment of deferred variable remuneration, which his employer refused to pay him because of the harassment.

The employer maintained that sexual harassment constituted a failure to comply with the requirements of the French Monetary and Financial Code (art. L511-84) and risky professional behavior, justifying the decision not to pay the deferred variable remuneration.

The French Supreme Court did not see it this way. It held that the rules of good repute referred to in the French Monetary and Financial Code, which authorize credit institutions not to pay variable remuneration, correspond to professional rules directly and closely linked to high risk investment business. In its view, sexual harassment was unrelated to this activity, and it concluded that the employer could not cancel the employee's variable remuneration on this basis.

• Cass. soc., 13 March 2024, n°22-22.032

Modification of a pay slip: the employee's agreement is required.

A dismissed employee claimed back pay based on a unilateral modification of her contract by the employer. For 13 years, her pay slips contained only one line relating to her monthly salary, before being modified to include two separate lines, one mentioning the monthly salary and the other mentioning break times, without any change in the hourly rate at which these times were remunerated.

The Court of Appeal found that since the employer was still paying the employee for the same number of hours, there was no unilateral modification of the employment contract.

The employee contested this ruling, and the French Supreme Court agreed. The Court noted that contractual working hours constitute an element of the employment contract that cannot be modified without the employee's agreement. Even if remuneration was maintained, the employer could not unilaterally modify the presentation of the pay slip by displaying the hours worked and the break hours paid at the same hourly rate on two separate lines.

• Cass. soc., 19 June 2024, n°23-10.817

Amicable termination: concealment of plans for competing activity invalidates the agreement.

An employee applied for an amicable termination on the grounds of job fatigue, lack of career development and a desire to undergo training. A termination agreement was signed with the employer.

The Court of Appeal declared the agreement null and void on the grounds of lack of consent on the part of the employer. In reality, the employee had concealed a well-developed project to set up a business competing with that of his employer, in the same sector and involving two former employees of the company.

The employee contested this ruling, arguing that no fraudulent concealment could be imputed to him since he was under no contractual obligation to inform his employer. He also felt that this decision infringed the fundamental principle of freedom to pursue a professional activity.

However, the French Supreme Court upheld the appellate court's decision, ruling that the employee's concealment of the planned competing activity constituted fraudulent concealment, since this element was a determining factor in the employer's consent, even though the employee was under no obligation to provide information. The employer's consent was thus vitiated. The termination agreement was therefore annulled, and the termination was treated as a resignation.

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