International Employment Law Review: August 2013 - Issue 4: Recent Employment Law Developments in France

by Dechert LLP


Interprofessional National Agreement and Law on Employment Security Passed

On January 11, 2013, social partners at national level agreed to an interprofessional agreement “for a new economic and social model serving business’ competitivity and securing employment and professional careers of the employees.” The agreement was followed by passage of a law on June 16, 2013 making the agreement enforceable. The new law contains various measures aimed at providing more flexibility to employers, among which there are the agreements for employment stability as well as agreements for internal mobility. Other provisions of the new law aim to reinforce employee rights related to external mobility and to extending access to medical insurance.

Case law

Dismissal Letters Should Not Refer to Penal or Administrative Charges That Are Not Final: Cass. Soc. December 12, 2012, n° 12-13.522

In this case, an employee was dismissed because he could no longer perform his job duties after his driver’s license was suspended. The employee appealed the suspension of his license and his termination. The employee’s appeal of the suspension was successful and the administrative court reinstated his driver’s license. Following that decision, the French Supreme court ruled that even if the employee’s termination was justified at the time that it was communicated to the employee, it was now unfair in light of the administrative court’s ruling. Other courts have reached similar decisions involving the effect of criminal court rulings where a former employee was exonerated. (Cass. Soc. January 12, 2012, n° 10-19-611).

These decisions endorsing the potential retroactive effect of both administrative and criminal court decisions on collateral employment cases are cause for concern. The outcome of the employment case is closely connected to the reasons for dismissal cited in the termination letter. Given these rulings, employers would be wise to refer to the consequences of the employee’s behavior for the employer and not solely to the criminal or administrative charges where those charges are not yet resolved.

Privacy Rules Do Not Prevent the Production of Documents in Litigation: Cass. Soc. December 19, 2012 n° 10.20.526 and 10.20.528

Employers cannot use privacy rules related to employee information or business secrets to refuse to produce that information when related to possible sex discrimination after a judge requests that information prior to litigation. The French Supreme Court approved a request made by two employees who alleged that they were paid lower wages as a result of sex discrimination. Prior to litigation, the employees requested that the employer preserve certain information about other employees. The employer objected. However, judges may order this disclosure on the basis of article 145 of the Code of civil procedure, if the disclosure is legitimate and necessary for the protection of the rights of the claimant.

This decision is surprising when read in conjunction with another decision rendered recently by the European Court of Justice (ECJ) in which it ruled that employees do not have a specific right to access information which could demonstrate the existence of direct or indirect discrimination. The ECJ plaintiff argued in a plausible way that he was not hired in spite of meeting all the requirements and, suspecting illegal conduct, sought access to information about the successful candidate. The ECJ rejected that request and found that the applicant does not have a right to access the documents related to the selection of the successful candidate. (ECJ, April 19, 2012, C-415/10).

Bullying Can Render an Amicable Termination Invalid: Cass. Soc. January 30, 2013, n° 11-22.332

An employee who entered into an amicable termination agreement challenged the validity of the termination on the basis that he had been bullied. The French Supreme Court decided that there was evidence that, at the time the employee signed the amicable termination agreement, the employee was psychologically troubled as a result of bullying and found that the termination was unfair.

The “amicable termination” was been introduced by June 25, 2008 law as a new type of termination freely entered into by the parties. This kind of termination requires free consent from the employee. In this case the fact that there had been bullying allowed the court to void the amicable termination, in the same way that claim of mistake, fraud, and violence allow a court to void an agreement in France. This decision reminds employers of the importance of remaining vigilant with respect to the circumstances surrounding amicable terminations in order to avoid later claims that the termination was void.

Employer Waiver of Non-Compete Must Happened No Later Than the Employee’s Last Day at Work to Avoid the Employer’s Obligations: Cass. Soc. March 13, 2013, n° 11-21.150

In this case, the French Supreme court provided valuable guidance to employers wishing to waive non-compete agreements where the employees are not asked to work during their notice period. An employee’s contract contained a non-compete provision. Following his resignation he was released from working his notice period on January 23, 2009. A few weeks later, on February 6, 2009, the employer waived the employee’s non-compete. The employee asked the employer to pay the financial compensation to which he was entitled as a result of the non-compete covenant. The employer refused and argued that the agreement entitled him to waive the non-compete clause at any time during the course of the employment contract including during the notice period. The Supreme Court ruled in favor of the employee. The Court held that despite any contractual or conventional provisions such a waiver should occur at the latest on the employee’s last day at work and in this case, the employer simply waited too long.

Disciplinary Procedures and Compliance with Provisions for a Collective Bargaining Agreement: Cass. Soc. March 27, 2013, n° 11-20.737

When a collective bargaining agreement (CBA) provides for a specific time period in which to notify the employee of dismissal, it must be complied with even when the law permits a longer period. In this case the applicable CBA was the one for architects. The employer did not comply with the CBA’s ten day time limit for notifying the employee of a disciplinary termination. The employee challenged the termination as unfair because it did not comply with the CBA. The employer argued that the CBA’s provision was just a procedural rule that even if violated could not impact the validity of the dismissal because the law allowed a longer period of one month to notify the employee of the dismissal. The Supreme Court disagreed and found that failure to comply with the CBA rendered the termination invalid. This decision is a good reminder for employers to follow any applicable CBA provisions even if they contradict with rules provided by the law to avoid problems.

Risks on Annual Day Packages: Cass. Soc. April 24, 2013, n°11-28398

In a case where the employer was governed by the CBA for the service industry sector, the French Supreme Court ruled that annual day packages are enforceable and valid only if the provisions of the CBA guarantee that employee work time and workload are reasonable and ensure a fair sharing of the work between the employees in order to protect their health and safety. In this matter, the annual day package was considered null and void because neither the service industry sector CBA nor the company-wide CBA provided these kinds of guarantees.

The consequences of this case are potentially significant. Employees may seek to void their annual day packages. If successful, the employee would then fall within the standard working time regime (requiring hourly wages) which, in turn, would allow the employee to make claims for back pay for work over 35 hours a week and damages for non-compliance with the provisions on mandatory rest (“repos compensateur”) when the overtime performed exceeded the legal or conventional annual limit (“contingent annuel d’heures supplémentaires”).

Written by:

Dechert LLP

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.