This newsletter summarises five significant judicial decisions over recent months:

• A report of an annual performance evaluation can constitute a disciplinary sanction (Cass. soc., 2-2-2022, n° 20-13.833)

During an annual performance evaluation, an employer criticized an employee for certain misconduct in the performance of his duties. These criticisms were included in the written report of the evaluation, which was given to the employee. Shortly afterwards, the employee was dismissed because of that same misconduct.

The employee disputed his dismissal. He contended, and the lower court agreed, that the evaluation report constituted a disciplinary warning and that his behavior could not be disciplined a second time by dismissal.

The employer appealed to the French Supreme Court. It argued that the evaluation report could not constitute a disciplinary measure, since it did not express an intention to punish the alleged misconduct.

The French Supreme Court rejected the employer’s argument and affirmed the Court of Appeals’ holding that the evaluation report constituted a disciplinary warning, since it criticized the employee for his behavior and asked that he completely change his attitude. Therefore the dismissal was unfair.

• Annual days package: a waiver of rest days must be formalized in writing (Cass. soc., 26-1-2022, n° 20-13.266)

An employee who worked under a total annual days package worked for more days than stipulated in the agreement, and his employer paid him at the usual daily rate. This meant that the employee implicitly waived his rest days, but no written agreement formalized the waiver.

When challenging his termination before the Employment Tribunal, the employee demanded an increase in payment for these rest days that he had waived. The court ruled in his favor.

The French Supreme Court noted that an employee has the option to make an agreement with his employer to waive some of his rest days in return for an increase in salary. The court emphasized that this agreement between the employee and the employer must be in writing. It also decided that, in the absence of such a written agreement, the judge determines the amount of the increase, applying the statutory minimum of 10%.

• Replacement by a younger employee can be discriminatory (CA Versailles, 17-3-2022, n° 20/02897)

A 58-year-old employee was dismissed for economic reasons. He was replaced by a younger employee.

The employee claimed in court not only that his dismissal and replacement were unfair, but that this was discriminatory. The Versailles Court of Appeals noted that, in the event of a dispute concerning a potentially discriminatory action, where the employee presents factual evidence suggesting either direct or indirect discrimination, then the burden is on the employer to prove that its action was justified by non-discriminatory factors.

In this case, the employee submitted the internal announcement about the appointment of the new employee to his previous position. The Court considered that the employee had established facts that could constitute discrimination against him. Since the employer was unable to demonstrate that the facts shown by the employee were justified by non-discriminatory factors, the court concluded that this was a case of discrimination.

• 37 fixed-term contracts were not reclassified as an indefinite-term contract (Cass. soc., 13-4-2022, n° 21-12.538)

An employee concluded 37 fixed-term contracts with her employer over a period of four and a half years.

At the end of the last contract, she brought an action before the Employment Tribunal to have the series of fixed-term contracts reclassified as an indefinite-term contract.

The Court of Appeals ruled against her, noting that each fixed-term contract specified the name of the employee that she was replacing and the reason for their absence, and that the company could prove that these employees were on leave, or sick during the fixed-term contracts.

The employee then appealed to the French Supreme Court, arguing that the Court of Appeals should have investigated whether the company systematically used fixed-term contracts to replace absent employees, and whether there was a structural need in the business for additional workers.

The French Supreme Court also ruled against the employee. Given the total duration of the fixed-term contracts (726 days over a four and a half year period), the Court concluded that each of the contracts was distinct and independent. Additionally, 23 of these 37 contracts had been signed as partial replacements of absent employees (on paid leave, maternity leave, or sick leave), and the employee had not demonstrated any irregularity. The Supreme Court upheld the Court of Appeals’ finding, highlighting there was no systemic use of fixed-term contracts by the employer to meet a structural need in the business for additional workers, and concluded that there was no evidence that the employee held a permanent position in the company.

• Bonuses may not be excluded from calculating compensation for paid rest days (Cass. soc., 9-6-2022, n° 21-10.628)

As part of employment law regulations, French employees who habitually work more than the statutory 35 hours per week may be entitled to paid rest days. An employer compensated an employee for his rest days using a calculation that excluded bonuses. Believing that these bonuses should be included in the calculation, the employee took the matter to court.

Before the French Supreme Court, the employer argued that since the bonus was not affected by taking rest days, the bonus should not be included in calculating the compensation for these rest days.

The Supreme Court rejected this argument and ruled in favor of the employee. It held that, in the absence of any legal or contractual provision allowing for the exclusion of bonuses from the calculation, compensation for rest days must be calculated including bonuses, regardless of whether the bonus is affected by taking rest days or not.