Harassing One's Superior Is a Felony
By Jean-Benoît Cottin
According to article L. 1152-1 of the French Labour Code, "Employees shall not be subjected to repeated actions constituting moral harassment, which intentionally or unintentionally result in the deterioration of their working conditions and are likely to violate their rights and dignity, impair their physical or mental health, or jeopardize their professional future". Article 222-33-2 of the French Labour Code sanctions, under similar circumstances, moral harassment, by a penalty of one year's imprisonment and a EUR 15.000 fine. The provisions concerned do not provide any details as to the perpetrator involved.
The Criminal Chamber of the French Supreme Court recently ruled (Cass. crim., December 6, 2011, n°10-82266) that the perpetrator may be convicted even if the individual concerned is actually the subordinate of the victim (so-called "ascending harassment"). In this case, the employee of a social service had been harassing his superior, denigrating his work and repeatedly disseminating contemptuous information about the victim, portraying him as being professionally incompetent. This went on for several years and, as a result, the victim committed suicide.
An Employer is Liable for Acts of Harassment Committed by Those Who Exercise De Facto or De Jure Authority Over Employees
The provisions of article L. 1152-1 of the French Labour Code defining and prohibiting bullying do not provide any details as to the perpetrator involved.
In a recent case it was decided that the employer has towards its employees a "safety obligation" and must, therefore, protect their health and safety in the workplace, particularly with regard to bullying. This obligation applies to the employer himself and to all employees. It also applies with respect to the actions of persons who exercise de facto or de jure authority over the employees. The fact that the employer himself commits no personal fault does not exempt him from liability. In this case, a fast food manager was the victim of bullying by a manager of a third company that the employer had a license agreement with (Cass soc. March 1, 2011, n ° 09-69616).
A decision of 19 October 2011 (Cass. soc., October 19, 2011, n°09-68272) rules likewise for a cleaning person hired by the property management company of a building who was bullied by the director of the homeowners' association. An earlier case ruled likewise and considered the employer as being liable for his wife's behaviour towards the employee who she harassed (Cass. soc., May 10 2001, n°99-40059).
A Private Company May Fire an Employee for Wearing Islamic Head-Cover
On April 11th, the law prohibiting the wearing of any face covering in public spaces entered into force. Though not a special rule for Islamic veils, it obviously applies to such. This prohibition does not apply to workplaces since companies should be regarded as private places, except when freely open to the public (e.g. shops). However, French labour law does not oblige employers to take steps to accommodate an employee's religious beliefs. On the contrary, an employer may restrict the exercising of religious freedom at work on two grounds:
- abuse of freedom of expression / thought, notably through insults, defamation, proselytism;
- objective, relevant and justified criteria revolving around health and safety issues or around contacts with clients in some circumstances.
There is a consensus that the workplace should be regarded as a "neutral" place. Only 2% of discrimination claims (and not only work-related issues) to the former French Equal Opportunities and Anti-Discrimination Commission (Halde) were based on religion.
Therefore, case law on that matter is pretty limited (there is, for example, no Supreme Court ruling), but most cases have been resolved in favour of the employer. As a recent example, a veiled woman working in a crèche (nursery) who had been dismissed for gross misconduct when she refused to work without wearing her veil, saw her employer's decision upheld by the judge (Court of Appeal of Versailles, October 27th , 2011, # 10/05642).
Airline's Retirement Policy Grounded by European Court Ruling
By Richard Lister of Lewis Silkin LLP (the UK member of Ius Laboris)
How old should airline pilots be before they're made to retire? That was the central question in a case brought by German pilots against the airline Lufthansa which has just been considered by the European Court of Justice (ECJ).
A collective agreement to which Lufthansa had signed up included a blanket prohibition on pilots working after they had reached the age of 60. Three pilots, whose employment contracts automatically terminated on their 60th birthday, didn't feel ready to hang up their captain's hats. They claimed the rule amounted to unlawful age discrimination.
Employment Newsnotes (Issue 51, Summer 2011)
Employment Newsnotes (PDF) is an occasional publication by Lewis Silkin covering recent UK employment law developments in an accessible, succinct and entertaining way. The latest issue includes articles on:
- Dangers for employers in relying on surveillance film in disciplinary proceedings
- Controlling employees' use of social media in the workplace
- How employers should go about implementing a pay cut lawfully
- The Government's proposal to introduce financial penalties for employers losing Employment Tribunal claims
- The latest cases concerning employees claiming discrimination on grounds of their 'philosophical belief'
- Interns - are they entitled to be paid the national minimum wage?
- The potential sanctions for businesses employing people who are working in the UK illegally
- The prospects of former News of the World staff being able to claim stigma damages
Blue-collar Worker vs White-collar Worker: The Constitutional Court Requires the Legislator to Act
In a judgment of 7 July 2011 the Constitutional Court ruled that the legal provisions concerning the notice periods for blue-collar workers and concerning the so-called "carenz-day" for blue collar workers are contrary to the constitutional principle of equality. The Court gives the legislator two years time (until 8 July 2013 at the latest) to remedy this discrimination and to accomplish the harmonisation of the legal position of blue- and white-collar workers.
On 8 July 1993, the Constitutional Court ruled that the difference in treatment between blue-collar and white-collar workers which is purely based on the nature of the work, can hardly be considered as a distinction that is based on an objective and reasonable criterion. Therefore, it was up to the legislator to proceed, at least gradually, to a harmonisation of the legal position of blue- and white-collar workers.
Continue Reading...Employer Liable for Negligent Statements in Email about Former Employee
The High Court has ruled that an employer could be liable to a former employee for negligent and damaging comments made in an email to his new employer - even though it was sent six years after the employment relationship had ended (McKie v Swindon College [2011] EWHC 469).
The case concerned Mr McKie, who worked at Swindon College between 1995 and 2002. He received an excellent reference when he left their employment. By 2008, he was working in a new role as director of studies at the University of Bath. Part of this role involved visiting various further education colleges, including his former employer.
Swindon's HR director sent an email to the University of Bath which stated that they did not want Mr McKie on their premises or dealing with their students. The reasons given included "real safeguarding concerns for our students", and also "serious staff relationship problems" during his previous employment. As a result of receiving this email, the University of Bath dismissed Mr McKie.
Continue Reading...U.S. Supreme Court Issues Decision on Wal-Mart Sex Discrimination Class Action Lawsuit
On June 20, 2011, a unanimous U.S. Supreme Court reversed a federal district court's 2004 decision certifying a nationwide class of female employees alleging sex discrimination in the company's pay and promotion practices under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The decision follows rulings by the full Ninth Circuit Court of Appeals in 2010, and a three-judge panel of the Ninth Circuit in 2007, both of which had affirmed class certification in large part.
In a 27-page majority opinion written by Justice Antonin Scalia, the Supreme Court held that the district court improperly certified the Dukes class under both Rules 23(a) and 23(b)(2) of the Federal Rules. Four justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) dissented regarding the Court's Rule 23(a) analysis, disagreeing with the majority about the proper threshold standards to apply in evaluating class certification. However, all justices unanimously agreed that the district court ultimately should not have certified the class under Rule 23(b)(2)'s more specific requirements.
As employers everywhere breathe a collective sigh of relief, what should they still be on guard for, and what should they take away from the Supreme Court's decision and analysis?
To learn more about the decision and its implications for employers, please continue reading Littler's ASAP, And the Class Certification Battle is Won: A Unanimous Supreme Court Reverses Rule 23(b)(2) Class Certification in Dukes v. Wal-Mart, by Margaret Parnell Hogan and Danielle L. Kitson.
Plans for Flexible Parental Leave Unveiled
The UK Government's latest employment law consultation paper, Consultation on Modern Workplaces (PDF), sets out plans to introduce a new system of flexible, shared parental leave. This would build upon the Government's decision earlier this year to implement the previous Labour administration's legislation on additional paternity leave with effect from April 2011.
Other proposals covered by the consultation include:
- Extending the right to request flexible working to all employees.
- Amendments to the Working Time Regulations 1998 (WTR) relating to annual leave entitlement and its interplay with sickness absence.
- Mandatory equal pay audits for employers who are found by an Employment Tribunal to have discriminated on grounds of sex in relation to pay.
Government Signals New Employment Law Reforms
The UK's Coalition Government has announced that it will be extending its review of employment law to cover three new areas. This forms part of a broader strategy to simplify legislation, improve efficiency and reduce business red tape. The latest announcement follows a recent major consultation on proposals to reform employment tribunal and resolution of workplace disputes, including extending the qualifying period for claiming unfair dismissal from one year to two years.