Employment Law Newsletter – May 2019

Our Paris office is pleased to present its monthly newsletter on employment matters.

1. Equal Treatment / Collective Bargaining Agreement: 

The French Supreme Court sets limits to the assumption of justification relating to differences in treatment between employees

The French Supreme Court refused to admit a general assumption of justification for differences in treatment introduced by means of a collective bargaining agreement relating to matters where European Union law is enforced, on the ground that this presumption would place the burden of proof on the employee to prove that the principle of equal treatment has been infringed in violation of burden of proof regulations in European Union law.

However, the French Supreme Court recalls in its explanatory note regarding its decision dated 3 April 2019 that the assumption of justification of the difference in treatment remains in force regarding differences in treatment made by means of collective bargaining agreements between professional categories, between employees performing within the same professional category distinct functions, between employees belonging to the same company but to distinct entities whether the difference results from an entity or company-wide collective bargaining agreement.

(French Supreme Court. 3  April 2019; n°17-11.970)

2. Professional Elections  

2.1 Determination of the number and scope of establishments by unilateral decision of the employer clarification of the conditions

The French Supreme Court considers that although article L. 2313-4 of the French Labour Code allows the employer to unilaterally set the number and scope of distinct entity within the company, this prerogative is only admissible after a fair attempt at negotiation and in the only hypothesis of absence of negotiations.

In the present case, the employer had unilaterally fixed the number and scope of distinct entities without prior negotiations. The French Supreme Court considers that the employer unilateral decision should be null and void, without the Administration having to rule on the number and scope of the distinct entities until negotiations have been previously initiated.  The employer is consequently summoned to open negotiations.

(French Supreme Court; 17 April 2019; n°18-22.948)

2.2 Parity in professional elections: precisions on incomplete and irregular lists  

The French Supreme Court confirms that, during professional elections, when more than two positions are to be filled, a trade union may submit an list with fewer candidates than seats to be filled, as long as the parity rules applicable to each list of candidates are complied with. The French Supreme Court specifies that in the event of non-compliance with parity regulations in a list of candidates, the election of the last elected members of the over-represented sex is null and void by taking the names in reverse order to the list of candidates. For the application of this rule, the judge must take into account the order of elected members as it results from the application of the rules relating to erasures whose number is equal or greater than 10% of the number of votes expressed.

The French Supreme Court considers that the election must be declared null and void because of the violation of the rules on parity regulations regarding lists of candidates (by taking into account erasures) rather than the list of candidates as determined by the trade union.  

(French Supreme Court; 17 April 2019; n°18-60.173 ; French Supreme Court; 17 April 2019; n°18-60.145; French Supreme Court;  17 April 2019; n°17-26.724)

3. Protected employee  

The cancellation of the mandate does not prevent the survival of the protective status 

The French Supreme Court considers that it is on the date of the annulment court decision that the employee representative mandate ends and as such the protection pursuant to the employee representative mandate continues to run pursuant to the "survival" rule (6 or 12 months).

In the present case, despite the cancellation of the employee representative mandate, the employer had to obtain prior authorization from the Labour Inspector before dismissing the employee representative who had carried out the mandate for at least twelve months and who was thus protected for an additional twelve months from the date of the judgment cancelling the mandate.

(French Supreme Court; 3 April 2019; n°17-28.880)


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