Case law update – France / Second semester of 2019

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This newsletter summarises four significant judicial decisions over recent months.

1. The purpose of a probation period is for the employee’s skills to be assessed. Therefore an employee’s absence would extend the probation period, unless the collective bargaining agreement or the employment contract provide otherwise (Cass, Soc., 11 September 2019, No 17-21.976).

An employee was hired on 17 February 2014. Her probation period was four months and could be extended. During the initial probation period, she took seven additional days off that she had been granted to compensate for her working time. Her employer notified her of an extension to her probation period on June 24, 2014 - i.e. after the theoretical end of the initial probation period on June 16 - and then terminated the probation period on September 19, 2014.

The employee requested a reclassification of the termination of her probation period as dismissal without real and serious cause, on the grounds that her contract should have been confirmed due to the late extension of her probation period.

The Supreme Court rejected this interpretation and established the principle that the taking of days off extends the duration of the probation period. It also confirmed its previous case law that the duration of the extension of the probation period is not limited to working days only but includes all days of absence. In the particular case, due to a full week's absence, the employer had validly extended the initial probation period by considering that the period of absence included the Saturday and Sunday following the week of absence, i.e. nine days even if the employee had taken seven days of additional rest days. The probation period therefore expired on June 25 at midnight and the renewal was valid.

2. Incorrect allocation of executive status may lead to overtime payments (Cass, Soc., 2 October 2019, No 17-28.940).

An employee with the status of director or senior executive is exempt from the rules on working time, but this status is invalid if, in practice, a director does not have the required responsibilities and autonomy.

An employee hired as an establishment director contested his status as a senior executive at the time of his dismissal in order to claim overtime payments, paid leave and compensation for concealed employment.

The Supreme Court upheld the decision of the Court of Appeal, which considered that the employee did not have the status of senior executive. The tasks performed under the authority and control of the Board of Directors and the Chairman were decisive factors in the decision.

The Supreme Court noted that the employment contract and the internal regulations provided in particular that the director had to be present at least ten half-days a week, could only sign cheques with the authorisation of the board of directors and only within limits set by the board, could not sign employment contracts, could only make proposals about recruitment, and that the conditions of employment and salaries of the employees were set by the board of directors.

3. The principle of secrecy of correspondence extends to the employee’s personal mailbox, even if he accesses it from his work computer (Cass, Soc., 23 October 2019, No 17-28.448).

An employer accessed, without authorisation, the exchanges between two co-workers, from their work computers, on a non-work related instant messaging system. He learned that one of them had stolen company documents.

He dismissed the employee in question for gross misconduct, using the instant messaging exchanges as evidence. He considered that the fact that the employee had omitted to label the exchanges as "personal" even though she was using a work computer meant that he was permitted to access to them without the employee's authorisation.

The Supreme Court rejected the employer's arguments. For the Court, access to these exchanges by getting into the employee's personal messaging system without her authorisation constituted an illicit form of proof. These messages, coming from a personal mailbox separate from the work mailbox, were covered by the principle of the secrecy of correspondence.

Therefore, the presumption that information on a work computer is work-related information does not apply to messages exchanged on an employee's personal mailbox.

4. Posting a photo on social networks can constitute an abuse of freedom of expression and justify dismissal for gross misconduct (CA Paris, 14 May 2019, No 18/03196).

The director of a facility for adults with learning disabilities posted on the social network Facebook a photograph showing him naked, kneeling in a church.

He was dismissed for gross misconduct.

The Paris Court of Appeal confirmed the dismissal finding that putting the photograph on the employee’s home page, where it was public and accessible to all, was inappropriate and excessive. It constituted an abuse of freedom of expression so as to cause harm to the employer, notwithstanding the fact that the photograph was taken for artistic purposes, outside the workplace and during his private life.

By acting in such a way, the director of a facility for vulnerable adults failed to fulfil the obligations inherent in his supervisory and educational functions, making it impossible to continue the employment contract.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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