Be careful with the weighting of legal criteria in the case of redundancies for economic reasons.

In two decisions of the same day, the High Court recalled that although the judge cannot substitute himself for the employer in the assessment of professional qualifications, it is nevertheless his responsibility to verify that the assessment made on this criterion is free of any manifest error or abuse of right. The employer must provide the judge with the objective elements on which he relied.

The judge's control thus shifts to the relevance of the objective elements retained by the employer.

In the first case (Cass. soc., 18 janvier 2023, n° 21-19.675), the Court of Cassation considers that the level of diploma alone is not a relevant criterion to assess professional skills and to distinguish between employees who both have equivalent experience.

Since the position to be filled was in the administrative department of an agricultural establishment, the judges held that the employer's argument that it was in the interest of the company to retain a Spanish linguist was irrelevant.

In the second case (Cass. soc., 18 janvier 2023, n° 21-19.633), the employer had balanced the criterion of family responsibilities, by allocating 2 points per child under 6 years old, 1 point per child from 7 to 12 years old, and no points beyond that.

A dismissed employee with an older only child challenged the application of this criterion, arguing that the employer was being disloyal because it was unable to justify how the distinction made on the basis of age was relevant and objectively justified in terms of the actual burden of the children in relation to their age.

The High Court ruled in favor of the employee since the employer did not demonstrate how a child over 12 years of age represented a lesser burden than a child under 12 or even under 6 years of age.

Although the penalty remains limited to damages of EUR 3,000 in each of the above cases, employers must be vigilant and work precisely on the criteria they intend to use in order to avoid claims for compensation after the termination.

The scanned handwritten signature of the fixed-term contract is valid

In this case, an employee who had signed a seasonal fixed-term contract decided to terminate the contract the day after it was signed, in particular because the contract had a scanned signature, not a handwritten one.

According to the employee, a scanned handwritten signature has no legal value. He therefore requested that the fixed-term contract be converted into a permanent employment contract on the grounds that the contract had not been signed within 48 hours of taking up the position, as required by law.

The Court of Cassation confirmed the decision of the Court of Appeal. It noted that although the signature at issue could not be qualified as an electronic signature within the meaning of the Civil Code, it was not disputed that the signature came from the company's manager and made it possible to identify its author, who was authorized to sign an employment contract. Therefore, this signature is not equivalent to the absence of any signature (Cass. soc., 14 décembre 2022, n°21-19.841).

This solution could certainly be extended to other documents in labor law for which a signature is required, such as a CERFA form for a contractual termination, for example.

However, a confirmation of this position would be welcome, as the circumstances of this case were quite disturbing, in particular the employee's intention to trick the employer

The travel time of mobile employees between their home and workplace can be considered as actual working time.

With this ruling, the Court of Cassation aligns its position with European law, a trend increasingly expressed by the Court.

For the Court of Justice of the European Union, the 2003 directive on working time must be interpreted in the sense that for workers without a fixed or usual place of work, their travel time devoted to daily trips between their home and the sites of the first and last customers designated by the employer constitutes working time.

The Court of Cassation had always refused to adopt this position, consistently considering that the travel time of an itinerant employee between his home and the first/last customer visited was not actual working time and had to be compensated in accordance with article L. 3121-4 of the French Labor Code.

In a decision dated November 23, 2022, the French High Court changed its position by interpreting the articles of the Labor Code relating to actual working time and commuting time in the light of the European Directive (Cass.soc., 23 novembre 2022, n°20-21.924).

It thus specifies that when the travel time performed by an itinerant employee between his home and the sites of his first and last customers meets the definition of effective working time, this time is no longer covered by the regime of travel time.

In concrete terms, the Court of Cassation considers that the employee, a technical sales representative, had to answer the telephone, set up customer appointments, all while traveling through seven departments in the west of France, occasionally going to the company's headquarters. This rhythm sometimes forced him to sleep in a hotel in the evening before leaving the next day.

Consequently, the Social Chamber approves the Court of Appeal, which considered that the employee had to be at the employer's disposal and was not free to pursue his personal activities, including during his travel time. These travel times therefore constituted actual working time that should be paid as such.

Optimizing commuting time by using multi-tasking is therefore not neutral for employers...