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.
The Use of Geolocation Is Restricted
An employer who wishes to use a geolocation device must make a declaration to the CNIL (Commission nationale de l'informatique et des libertés), which is responsible for ensuring that information technology remains at the service of citizens and does not jeopardize human identity or breach human rights, privacy or individual or public liberties. The CNIL will also verify that the principles relating to the protection of personal data are respected.
The declaration may be made online. Only after the employer receives confirmation from CNIL that the declaration was received may the employer implement a system with geolocation devices.
A decision of the Supreme Court of 3 November 2011 points out that a system monitoring employee activity such as geolocation can not legally (CA Versailles, 17th ch., 17 September 2010, No. 09/02316, Messaoudi C / SA Sogeres) be used by the employer for any other purposes than those declared to the CNIL, and must be brought to the attention of the employees.
Moreover, geolocation limits the personal freedom of employees and this must be justified, in accordance with Article L. 1121-1 of the French Labour Code. According to the Supreme Court there is no such justification for controlling the hours of work of an employee who is free to organize his work. Furthermore, the employee in the case in question had not been informed that the device would be used for such purpose. The court ruled that this illegal use is sufficient to justify a notification by the employee of a breach of the employment contract by the employer (assimilated to unfair dismissal).
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).
Compulsory Dividend Bonus
The law passed on July 28th, 2011 requires all French companies and groups of companies whose holding company is in France, to pay a bonus to employees if they distribute a dividend to their shareholders, which is higher than the average of the dividends of the two previous years. The amount of the bonus is to be negotiated with the unions. If these negotiations are not successful, the employer can unilaterally decide the amount. For 2011, companies had until October 31st, 2011 to come into compliance. The bonus is exempt from social security contributions up to 1200 euros. According to preliminary surveys, the amount proposed by companies is mostly between 150 and 500 euros.
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).
France Takes Some Important Steps to Ensure Greater Equality Between Men and Women
The preamble of the 1946 Constitution states that the law guarantees men and women equal rights in all respects.
In 1972, a law stipulated that "each employer guarantees the equality of remuneration between men and women for the same work or for work of equal value" (law of 22 December 1972).
In 1983, work of equal value was formally defined as: "work tasks that require from employees comparable ranges of professional knowledge recognized by a title, a diploma or professional experience, by capabilities resulting from acquired experiences, by responsibilities and by physical and intellectual workload" (article 3221-4 of the French labour code).
In 2001, professional equality became a compulsory subject to be addressed in all kinds of workplace negotiations relating to issues such as remuneration, working time, job classification and professional training.
In 2006, a law was proposed to require private and public sector companies to comply with a minimum quota of 20% female board members. However, the French Constitutional Council rejected this provision as being contrary to the general principle of equality between men and women.
French opposition to positive discrimination in the form of compulsory quotas has nevertheless receded since then. Indeed, a bill proposed by senators on 27 October 2010 suggests that boards of listed companies and companies with supervisory boards should have an equal number of female and male members.
Continue Reading...Law Applicable to an Employment Contract
The Rome Convention (80/934/EEC) on the law applicable to contractual obligations applies to contractual obligations in situations involving a choice of law. The signatories to a contract may as a rule choose the law applicable to all or a part of the contract.
However, in an employment contract, a choice of law made by the parties cannot have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable in the absence of choice, i.e., (1) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; (2) or, if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated; (3) unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract must be governed by the law of that country.
Continue Reading...Physically Slapping a Client May Not Constitute an Act of Gross Misconduct
Before dismissing an employee for misconduct, an employer must be attentive to the circumstances which led the employee to commit the alleged offense, especially when the individual concerned has seniority and has never before been subject to any rebuke or criticism by his/her superiors.
In a recent case, the French Supreme Court (Cour de cassation) ruled that slapping a client does not automatically justify a dismissal for gross misconduct.
In this case, the misconduct was rejected on the grounds that the employee who served as cashier had acted in "self-defense" against an aggressive and threatening client. The employee concerned didn't get any help, despite calling for that; her supervisor attended the scene without intervening. As a result, the dismissal has been judged illegal.
This entry was written by Jean-Benoît Cottin.
Stricter Obligations Imposed by the French Supreme Court with Respect to Moral and Sexual Harassment Cases
In two recent decisions, the French Supreme Court established stricter obligations for employers when employees claim that they suffer from moral and sexual harassment.
It is important to outline that under French law employers must take all necessary measures in order to protect employees' physical and mental health.
In the above-mentioned decisions, two employees terminated their employment contracts on the grounds of constructive dismissal. In the first case, one employee blamed her manager for, in particular, instructing other employees not to talk to her and for not paying her remuneration. In the second case, one employee claimed that she was a victim of sexual harassment carried out by her manager.
Continue Reading...A Criminal Conviction Does Not Necessarily Justify a Sanction for a Disciplinary Fault
French courts have ruled that a failing linked to an employee's private life cannot be grounds for a disciplinary sanction by their employer. For example, a court decided that the fact that an ambulance driver couldn't be reached on his professional mobile phone outside his working hours was not a fault, even when such failing took place in the context of an emergency.
Continue Reading...