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 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).

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).

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.

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).

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.

At the same time, the law reforming retirement in France, dated 9 November 2010, also contains an important provision regarding equality between men and women. As of 1 January 2012, companies with more than 50 employees will have to conclude an agreement with the staff representatives on professional equality between men and women. If no agreement can be reached, companies of at least 50 employees will have to draft an action plan ("plan d'action") to define objectives and measures aimed at guaranteeing professional equality between men and women. This progressive plan will also include an assessment of the costs involved.

In a similar direction, the Supreme Court rendered an important decision on 6 July 2010 which accepted the principle of comparing the situation of men and women in the workplace even when they are carrying out different duties. The judges set out a broad interpretation of the term "work of equal value."

In this particular case, the employee was a human resources director having the same hierarchy level and job classification, with responsibilities of comparable importance, as her male colleagues in the company's management. Despite having more seniority and an educational level similar to that of her male colleagues, her remuneration was much lower. The Supreme Court considered her to be a victim of inequality of treatment, since the employer did not prove that this difference in salary was justified by reasons which had no connection with discrimination. For an executive employee, a non-discriminatory difference could reside in the size of the teams managed by the employee or in the hierarchical level occupied (Supreme Court 18 July 2010, TMS CONTACT c/ Mme JB).

It is also interesting to note that a multinational corporation was recently forced to pay almost 159,000 EUR to a senior female employee who had a career of 24 years, after a finding that she was discriminated against, in terms of remuneration and career progression, compared to her male colleagues of comparable seniority and age, possessing the same academic qualifications.

By accepting quotas, the legislature has shown that equality between men and women at work has become an important priority in France. Nevertheless, female employees' wages are still today 30% less than those of their male colleagues (with the difference being 27% for the age range 39-49 in July 2010, according to the OFCE (l'Observatoire Français des Conjonctures économiques)).

In France, discrimination-related litigation traditionally focused on unions and staff representatives. Up to recently, employers, unions and employees were more reluctant to negotiate and to litigate on sexual discrimination, because it impacts not only on professional activities but also on private life. Indeed, talking about the differences between men and women at work is necessarily linked to a concern about how to make professional life compatible with family life (maternity, parental leave, part-time work, etc.). This issue must be dealt with in terms of equality of treatment, as set out by the European Court of Justice (CJCE 17 June 1998, case 243/95).

Beyond the changes in the law or developments in case law, there is also a progressive cultural change in the workplace. Social audits and greater information exchange amongst all employees is a first step towards reducing remuneration gaps.  Reports on professional evolution are also important, along with statistics that are already required from companies (Article L.2323-57). Putting to one side the obvious differences seen in remuneration, there is also a higher risk of litigation in future years relating to differences in career progression, access to company training schemes, etc.

Some large companies have set up programmes both to create awareness at managerial level of the discrimination problem and to dedicate a budget to reducing it (at least in terms of remuneration). As from 2012, this will be compulsory for all companies with more than 50 employees.

This entry was written by Anne-Laure Peries

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.

The employees claimed that French law was applicable, notwithstanding the fact that they choose Swiss law in their contracts.

The French Supreme Court (Cour de cassation) has accepted their claims and has ruled that:

• when it comes to identifying the law which would be applicable in the absence of choice, the party who claims that the law of the country in which the employee habitually carries out his work does not apply has to provide evidence that the contract is more closely connected with another country;
• the elements characterizing the parties' relationships, but resulting from the application of the law they choose, cannot be retained to link the contract to another law than the law of the country in which the employee habitually carries out his work.

This entry was written by Etienne Delattre

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.

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.

However, a few months later, both employees started legal action and asked the employment tribunal to decide that their dismissals should be regarded as unfair dismissals.

The employees claimed that their employers had not fulfilled their health and safety obligations since both individuals suffered moral and sexual harassment.

The employers argued that such claims should be rejected since everything had been done in order to protect the employees' health and safety and since disciplinary sanctions had been taken against the harassing staff members.

However, the French Supreme Court considered that the breach of an employer's health and safety obligations is automatically in evidence when an employee suffers from moral or sexual harassment.

It does not matter if, when informed, the employer takes all necessary measures in order to protect the employee.  The employer is automatically liable for damages and a constructive dismissal initiated by the employee will be construed as unfair dismissal.

The logic of the French Supreme Court is that employers must take all appropriate measures in order to protect their employees' health and safety.  If acts of moral or sexual harassment are committed, it means that employers failed to fulfill such an obligation and their liability is automatically triggered.

There is no denying that, in practice, such an obligation will be extremely difficult to respect since it is impossible to prevent all potential damages that employees may face.
 
This entry was written by Jean-Michel Ageron

However, the Supreme Court has stated and repeated in a recent decision that the employee's dismissal is legally possible if justified not by the act itself but the disruption caused to the company by the failure of the employee. The dismissal will be justified by the negative impact on the company. It is the employer's responsibility to demonstrate these effects. The employer will have to prove that the employee's behavior in his personal life, given the nature of the employee's functions and the purpose of the employer's undertaking, has created a significant disruption within the employer's undertaking.

This entry was written by Florence Riquoir.

What is permitted at work? What is banned?

Religion is not legally defined in France but the freedom of religion is guaranteed through the Constitution (Preamble of 27 October 1946) and through other concepts: the freedom of expression/thought (article 9 of the European Convention of Human Rights, applicable to all employees) and the principle of nondiscrimination (sanctioned by the labour law code and by the penal code). Indeed, religious beliefs are considered as part of an individual's freedom of expression/thought and an employer is prohibited from taking religion into account in the way that it treats job applicants and employees regarding their working conditions.

The employer may restrict the exercise of religious freedom at work, based on case-law and guidelines from the HALDE (High Authority for Anti-Discrimination Measures and Equality), on two grounds:

• if the freedom of expression/thought has been abused notably with insults, defamation, proselytism, which can put at risk the rights and freedom of other citizens/employees.
  The wearing a headscarf is not an act of proselytism in itself, outside any other circumstances or pressure (Supreme Administrative Court, 27 November 1996);
• if there are objective, relevant and justified criteria.  However, in such case the restrictions imposed by the employer must correspond with the nature of the task to be accomplished and be proportionate to the aim sought. In practice, the criteria revolve around health and safety for the employee and/or his/her colleagues and contacts with the public/clients but only in specific circumstances, due to the nature of the job.

The employer can restrict the expression of religion either by using the internal rules (a general document for all employees on hygiene, safety and discipline) or by invoking the principle of "good faith" which is an implicit obligation for both parties to an individual employment contract.

The internal rules cannot set out a general ban on religious expression at work (Administrative Supreme Court, 25/1/1989); they need to specify precisely the restrictions and narrow them to certain specific job positions. Also, a guideline from the HALDE of 6 April 2009 recommends that, before any disciplinary action is taken, the employer and the employee should discuss the conditions of the religious restrictions. In brief, since it is a case by case assessment, internal rules are not a very satisfactory tool to restrict religious expression at work.

The employer can argue that the employee must carry out his/her duties in good faith, as it results from the employment contract (indeed, a butcher cannot later refuse to work, arguing that the meat he is obliged to handle is not compliant with his new religious beliefs). In this regard, the  employer can base its case on various aspects of the employment relationship:
 

• medical examinations at work. These regular examinations are compulsory, whatever the religious beliefs of the employees are (Supreme Court, 29 May 1986);
• strict observance of the working hours and of the date of holidays agreed with the employer.  A Muslim teacher, for example, cannot demand to be dispensed from working on Friday, in order to pray and an employer can refuse some requests for leave or absence, provided the refusal is  objectively justified by the functioning of the company and not by any discrimination based on religion, according to the HALDE;
• dress code. The actual workplace plays an important role and the nature of the employee's tasks will determine if the employee  can "show their religion" through the clothing he/she wears. In a clothing shop, a Muslim worker who insisted on wearing a religious headscarf was dismissed with cause as the employer argued that it was not consistent with respecting the clients' various religious convictions (Court of Appeal of Paris, 16 March 2001). This argument did, however, not prevail in the case of a call centre where the contacts with the clients were limited to a telephone hotline or when there was no need to represent the company's brand image (Court of Appeal of Paris, 19 June 2003).

This entry was written by Anne-Laure Peries.

Since 1995, the French Supreme Court has imposed on employers a general obligation to offer redeployment before making any employee redundant. This obligation was incorporated into the French Labour Code in 2002.

The French Supreme Court ("Cour de cassation") ruled that the employer has to search for and propose any vacant position within the same Group, among all the entities whose activities, organization and localization permit the employees to be made redundant to switch.

In terms of the employee's qualifications, the employer has first to propose equivalent jobs; if such functions are not available, it has to propose less qualified jobs.

French courts strictly controlled that employers complied with this obligation; where employers failed to comply, the courts granted damages for unfair dismissal to the employees who were not offered existing vacant positions.

Until the law of 18 May 2010, the employer had to propose all the jobs which were available, without being able to presuming that the employee would refuse (although it might appear obvious that, for example, a well-paid French manager would likely refuse to work in a foreign country with low local salaries and poor benefits). As a result, French employers were required, in many cases, to propose low level functions located abroad and very low salaries.

The law of 18 May 2010 now provides that the employer sends a questionnaire to the affected employee, in order to know if the employee accepts to receive proposals regarding redeployment possibilities abroad, and the potential restrictions that he/she may have notably in terms of location or compensation. If the employee accepts to receive offers within six days, the employer has to send him/her a precise proposal in writing.

This procedure does not concern vacant positions available within the French legal entities which must be proposed in any case.

Whatever the location of the proposed job, from now on, if this proposal concerns equivalent jobs, the proposed compensation must be equivalent.

This contribution was written by Etienne Delattre

These decisions were based on company law provisions which specify that an SAS is represented towards third parties by its president, whose powers can also be exercised by another officer, subject to provisions to this effect in the bylaws of the company and an appropriate filing with the Commercial Registry.

Among the Appeal courts which have adopted such a position are the important and  influential courts of Paris and Versailles (notably Court of Appeal of Versailles, 24th September 2009; Court of Appeal of Paris, 10th December 2009).

These decisions have been referred to the French Supreme Court ("Cour de Cassation").  Its ruling will be awaited with impatience by many SAS companies, especially those which have notified dismissals in recent months, including many subsidiaries of foreign groups, for which the SAS form has frequently been adopted because of its relative flexibility.

Pending a ruling by the Cour de Cassation on the question of the validity of powers of attorney given to employees of an SAS, many such companies prefer to have their president sign such notifications, and even to modify their bylaws in order to make it possible for the president to delegate authority to an authorised officer.

This entry was written by Judith Adams-Biron, Paris.

Since 1 March 2010, it is possible to contest the constitutionality of a law before any French court ("Priority Preliminary rulings on the issue of constitutionality"

This possibility is open to individuals and companies in all matters and at any point in time in a court procedure.

However, the court itself is not allowed to raise the issue of constitutionality.

Once the issue is brought up before the court, the judge must immediately refer it to the highest courts in private and administrative law (respectively the Cour de cassation and Conseil d'Etat).

If the request is regarded as founded, the case is sent before the French Constitutional Council (Conseil Constitutionnel).

The Constitutional Council must in particular inform the French President, the Prime Minister and has a three month period in order to reject the request or to decide that the law does not respect the French constitution.

In the latter situation, the Constitutional Council will repeal the law in question.

During this period during which the issue of constitutionality is being raised before the different courts, the initial procedure is suspended.

This entry was written by Jean-Michel Ageron.