Littler Global Guide - France - Q4 2022

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Modifications to Unemployment Insurance Scheme

New Legislation Enacted

Author: Guillaume Desmoulin, Partner – Littler France

Among other things, the Law on Emergency Measures Relating to the Functioning of the Labor Market to Achieve Full Employment seeks to modify the unemployment insurance scheme. Article 4 creates a presumption of resignation when an employee voluntarily abandons their job and fails to return to work after having been given notice to justify their absence and to return to their post within the period set by the employer. This period cannot be less than the minimum required by law. The objective is to fight against certain abuses where the employee terminates the employment relationship while retaining the benefit of unemployment insurance.

When an employee challenges the applicability of this presumption, within one month from the date of referral, the employment tribunal must determine whether the employee was wrongfully terminated. Article 2 also aims to deprive employees on fixed-term or temporary contracts of the benefit of unemployment insurance in the event that they refuse to accept an open-ended contract on two occasions. The employer will have to formulate the offer of a permanent contract in writing and inform the unemployment insurance of any refusal.

Travel Time for Mobile Employees May Constitute Actual Working Time

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Littler France

In a case brought before the French Court of Cassation, a mobile worker requested the payment of back pay for overtime corresponding to his travel time at the beginning and at the end of each day. During these trips, the employee was doing business calls. The time spent travelling between the employee’s home and the place of work is normally not considered as actual compensable working time. An itinerant employee can only claim financial or other compensation when exceeding the normal travel time between the employee’s home and the usual place of work.

In this case, however, the Court of Cassation considered the constraints to which the employees are actually subjected to determine whether travel time of itinerant workers constitutes actual working time. Considering that the itinerant employee had to be at the employer’s disposal and comply with the employer’s instructions without being able to pursue personal interests during the business trips, the French Court of Cassation held that this travel time was actual compensable working time and the employer was ordered to pay for overtime.

Employee Performing On-Call Duty Must Be Able to Go About his Personal Business

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Littler France

An on-call duty is a period during which an employee, without being at the place of work and without being at the permanent and immediate disposal of the employer, must be able to intervene in order to perform work for the employer. Only the duration of this intervention is then considered as actual working time. In this matter, an employee was engaged in a car recovery service and was on call to intervene on a section of freeway. The employee requested that these periods of on-call duty be considered as actual working time. In support of this request, the employee claimed that the short time he had to be on site after a call from a user prevented him from going about his personal business between the various calls.

Referring to applicable case law (i.e., ECJ March 9, 2021, C-344/19), the French Court of Cassation overruled the first decision because the first judges had not verified whether the employee had been subjected to constraints of such intensity that they had affected objectively and very significantly his ability to freely manage the time during which his professional services were not required and to go about his personal business. In the absence of such flexibility, the employee may claim that these periods are considered as actual working time.

Telecommuting Recommended by the Occupational Doctor as a Redeployment Measure

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Littler France

In a case brought before the Paris Court of Appeal, an administrative employee in a pharmacy challenged her dismissal for physical unfitness, claiming that her employer had failed in its obligation to redeploy her by not offering her a job she could perform from home in accordance with the recommendations of the occupational physician. Under French law, the obligation to redeploy following the recognition of physical unfitness by the occupational physician may require the implementation of measures such as transfers, adjustments, or transformations of the existing role. Among these measures, the French courts consider that home office constitutes a possible means of redeployment.

In this case, the employer argued that home office was not compatible with her duties and that the job of remote sales could not be performed from home since it involved the preparation of orders from the pharmacy. The Court of Appeal ruled that the employer must meet the burden to justify the precise steps the employer has taken to achieve the redeployment in compliance with the recommendations of the occupational doctor. In lack of evidence of a serious search for a new job, the dismissal is deemed as without cause.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.